26 Am. Rep. 357 | Va. | 1877
delivered the opinion of the court.
After stating the case he proceeded: The court is of opinion, that according to the principles of
In Shearman and Redfield on Negligence, § 585, the law is thus laid down by those authors, who seem to be fully sustained by the authorities cited in their notes to that section: “ The owner or lessee of a dock, pier or wharf, receiving tolls for its use, is bound to keep it in reasonably good condition, so that, as far as by the use of ordinary care, diligence and skill, he can make it so, it shall be fit for the use of vessels, and safe for all persons to enter upon who have a right of access. If the wharf owner receives tolls from the public generally, he owes this duty to the public, and is liable to any one specially injured by his neglect to fulfil it.55 “It is negligence to permit anything to project from the side of a wharf in such manner as, by any probable combination of circumstances, to endanger the safety of vessels moored to the wharf. They are entitled to the unobstructed use of the water, whether it rises or falls. A wharf or dock owner receiving toll, does not fulfil his obligations by simply keeping the wharf or dock clear of obstacles and defects, which are visible upon an external inspection. If the general experience of persons in charge of wharves and docks has made it a fact of common notoriety among them, that such property is liable to become defective and dangerous from causes that can
There are other sections of S. & B. on Negligence, which have a material bearing-on this case, among which are §§ 120, 135 and 137. In § 120 it is stated, among other things, that “ there is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances, as private corporations or individuals would be liable for in a civil action.” Many eases are referred to in the notes to that section, and among them is the case of Mersey Docks Trustees v. Gibbs, supra, of which there is a very full statement, the decision in which case was afterwards followed in Coe v. Wise, 1 Q. B. L. R. 711. In § 135, it is stated that “ the rules of law governing the relation of master and servant, and principal and agent, are as applicable to corporations as to natural persons; and a municipal corporation is liable for the carelessness or neglect of its agents, on the same principle that a natural person is liable for damages resulting from the carelessness, unskillfulness or wrong doing of his agents. § 137 is to the same effect. Of course municipal corporations in the exercise of their political, discretionary and legislative authority, are not liable for the misconduct, negligence or omissions of the agents employed by them. But municipal corporations, in discharge of ministerial or specified duties, assumed in consideration of the privileges conferred by their charter, are liable for the misconduct, negligence or omissions of their agents; and this
We have examined the authorities referred to by the learned counsel for the city of Petersburg, to wit: Home v. Richards, 4 Call 441; Mayor v. Cunliff, 2 Comst. 165; Sh. & Red. on Negligence, §§ 123, 126, 147, 148 and 407; Wharton on Negligence, § 52; City of Richmond v. Long’s adm’rs, 17 Gratt. 375; Fowle v. The Common Council of Alexandria, 3 Pet. R. 398; The City of Providence v. Clapp, 17 How. U. S. R. 161; Coe v. Wise, 5 Best & Smith (117 E. C. L. R.) 439; Weightman v. The Corporation of Washington, 1 Black’s R. 39; Mayor v. Sheffield, 4 Wall. U. S. R. 189; Withers v. The North Kent Railway Company, 3 Hurlst. & Nor. 969. But without stating the purport of these authorities, it is sufficient to say that we do not consider any of them to be in conflict with what we have stated, as in our opinion the law and the authorities cited by us in support thereof. None of the cases referred to by the counsel are cases of a wharf owner, receiving or entitled to receive wharfage; in which case the obligation of such owner to keep his wharf in repair, and to keep the water adjacent thereto free from obstruction, as before stated, seems to be well settled. And though in an action for negligence in such a case, the burden of proving such negligence, devolves, of course, on the plaintiff, yet proof of the existence of an obstruction
That it is made the duty of the port warden to see ■that the navigation of the Appomattox river, in the city of Petersburg, is kept free from obstruction, and to attend to the duties of the city, in regard to the city wharf, can make no difference. The port warden in this matter is but the agent of the city, and a principal is always bound for the acts and neglects of his agent in the execution of the agency. The same rule on this subject, which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation, which can only act by an agent.
Nor can it make any difference that it has been made the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, under the acts passed December 8th, 1824 (acts 1823-’4, p. 45, ch. 48), and March 28th, 1851 (acts of 1850-’51, p. 72, ch. 91). It seems that the city is now in effect the Lower Appomattox company, owning all the stock of that company, and electing its directory, which company, therefore, is a mere agency of the city. But even if it were a separate and independent organization, its obligation to perform a duty, which the city is also bound to perform, on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty. If so,, a party affected by the neglect of such duty might he injured by this substituted liability of the company.
Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged it. While such operations are beneficial to
That no wharfage was actually received by the city th*8 case, and that it does not usually charge wharf-age in such cases, can make no difference. It is sufficient that the city was entitled to make the charge, and that wharfage was due by the vessel owner. He could not know that no wharfage would be received of him. He came to the city with his vessel, laden with a cargo of coal consigned to merchants of the city, and not being able to go up at once to the wharf nearest his consignees, he moored his vessel to the city wharf, relying on the city for the safety of his vessel, expecting and intending of course to pay the legal wharfage-
The court is further of opinion that the circuit court did not err in overruling the demurrer to the fourth count of the declaration. Without setting out the-substance of that count here, it is sufficient to say that it sets out a good cause of action, and is free from just ground of objection. The demurrer to the third count was sustained, and there was no demurrer to the first or second count.
The court is further of opinion, that the circuit court did not err in giving the six instructions asked for by the plaintiff; nor in refusing to give the first, second, third and fourth instructions asked for by the defendant ; nor in giving the instruction which it gave of its own motion. These instructions, taken altogether, correctly expounded the law, and were not calculated to mislead the jury. (The court here read the instructions, and commented briefly upon them.)
The court is further of opinion, that the circuit court .did not err in overruling the motion of the defendant to set aside the verdict and grant a new trial upon the ground that the verdict is contrary to the
Upon the whole, we are of the opinion that there is no error in the judgment, and that it ought to be. affirmed. "
Judgment aeeirmed.