184 Mass. 60 | Mass. | 1903
The judge of the Superior Court, who tried this case without a jury, found for the defendant, and stated the reasons for his finding. Some of these reasons do not appear to be in accordance with the evidence, nor to be warranted by it; and the judge concludes his subsidiary findings by the statement that the master of the vessel “ knew that in order to reach the berth designated, his keel must plough the mud a depth of two feet, and that the bottom would be searched by his barge as it had not been searched by a vessel before.” And he ends by saying: “ I am of opinion that the loss should rest where it has fallen.” There is no finding that the master of the vessel was not in the exercise of due care, and the theory on which the decision apparently rests is that the master took the risk.
We will now point out wherein it seems to us that the judge was not warranted by the evidence in some of his subsidiary findings. In the first place the judge states: “It does not appear that any vessel had ever been in the dock before drawing, more than twenty feet of water.” Crockett, a witness for the defendant, who was interested in the defendant company, and had charge of its local business at Rockland, testified that prior to June, 1900, when the accident occurred, “ the wharf had been used for loading and unloading vessels of all sizes, from small schooners to large ships drawing more than twenty feet.” Norton, an employee of the defendant, testified in its behalf that he
The judge found that other vessels “had lain there before without injury.” There was evidence to warrant a finding that vessels had lain at the dock before without injury, but it does not appear that these vessels had rested on the ledge. While such evidence is often admitted in this class of cases, its admissibility is very questionable. It would seem to come within the rule that the fact that* other persons have not suffered by an alleged defect, is immaterial. Aldrich v. Pelham, 1 Gray, 510. But if such evidence is admissible, to entitle it to any weight, it should appear that the other vessels were of the same length, breadth, and flatness, as was the plaintiff’s vessel, and were as heavily loaded as she was. The defendant made no attempt to prove any of these things. The value of such evidence is to show the existence of no defect, but, as was said by Judge Wallace in Smith v. Havemeyer, 36 Fed. Rep. 927, 928, it becomes quite unimportant when it appears beyond doubt that there are defects capable of producing mischief which could have been readily discovered by proper examination.
The general rules of law which are applicable in cases of this character are the same in England and in this country, and are the same at common law and in admiralty. They are as well
We have examined all the cases cited by the counsel on each side, and also other cases, but we have found none in which the doctrine of the assumption of the risk has been applied. It may however be true that where a master of a vessel knows of a hidden obstruction in a dock and takes his vessel in he acts so carelessly that he may be said to assume the risk. The case of Christian v. Van Tassel, 12 Fed. Rep. 884, was decided upon the general principles we have stated, but Judge Brown, in giving the opinion, apparently in answer to an argument of counsel, said: “ The libellant, in voluntarily moving the boat forward upon what was known to be shoal water, took the risk
It is clear that the vessel was in the defendant’s dock on business, and was, therefore, there by invitation. The judge has found, and the evidence shows, that the injury was caused by a ledge of rocks embedded in the mud at the bottom of the dock. The question's of fact which he did not pass upon are whether the master was in the exercise of due care, and whether the defendant knew of the defect or could by the exercise of reasonable care and diligence have ascertained its existence.
If the master exercised reasonable care and the defendant was negligent, it cannot be said that the master took the risk of the ledge merely because he had to go through some mud.
We are of opinion, therefore, that the case was not decided upon the application of proper principles of law, and that there must be a new trial.
The first request we are of opinion should have been given. We are not aware of any case in which it has been held that the master of a vessel which is to lie in a regular berth at a wharf is obliged to take soundings, though such an obligation may be held to exist where a vessel is to take ground at a place where vessels do not usually lie. As to the authority of Norton, it is plain from the evidence that he was the agent of the defendant on the wharf, and gave all the directions to the master that were given in respect to the berth the vessel was to lie at. The master reported to him before the vessel was hauled in, inquired the depth of the water and the character of the bottom. He was assured that there was plenty of water, and the bottom was good. This bears directly upon the question of the due care of the master. There was some attempt to show that Norton was only the general superintendent of certain branches of business, such as loading cars and vessels with lime, “ discharging vessels with coal, taking account of cooperage, etc. etc.” There is nothing in the evidence to show that the defendant had any one else on the wharf with authority to give directions to vessels coming there, and to answer questions in regard to the depth of water and the nature of the bottom. Indeed there is no evi
The second request states a correct principle of law, but it is rendered immaterial by the judge’s finding. The third request is perhaps stated too broadly. The fourth request should have been given. See cases cited above.
jExceptions sustained.