Hagan v. Brockie

11 F. 745 | E.D. Pa. | 1882

Butler, D. J.

The libellant’s case rests on his allegation of negligence. The respondents were not insurers; but were bound to the observance of proper care. Does the evidence show that they failed in this? The dock was dredged immediately before the barge entered. This is not only the usual, but the universal, method of removing obstructions and rendering the channel safe. How, then can the respondents justly be charged with negligence? As respects Mr. Broekie, the libellant has undertaken to show actual knowledge of danger. But even if the testimony appealed to is credited, it falls short. It shows notice simply that the barge’s master believed a newly-dredged dock unsafe, for such vessels. This was of no importance, and the master was justified in disregarding it, unless the belief corresponds with common experience. The libellant has, however, produced testimony to show that it does correspond with such experience — that freshly-dredged docks are frequently found to be unsafe for the entrance of barges, and that this is so well understood that they are commonly subjected to inspection before such vessels enter. The testimony, when all considered, in my judgment, does not sustain the position. Its weight, I think, is clearly the other way. A number of witnesses, of very large experience, testify that they never heard of such danger, and that docks are never inspected after dredging, except to ascertain the depth of channel. It is probably true, as stated by one of the libellant’s witnesses, (Patrick Powderly,) that bargemen entering such docks use their poles to feel for obstructions. This is the kind of precaution, says this witness, that is taken, and that it is the only precaution he has known. It was resorted to by the barge in this instance; but unfortunately the disarranged pile was not discovered. Under the circumstances shown, and in view of common usage and experience respecting the cleansing of docks, it would be unreasonable to hold the respondents guilty of negligence. They had no reason to apprehend the displacement of the.pile; it was a very extraordinary circumstance, — not to be anticipated, — and the injury resulting from it was, therefore, one against which proper care would not guard. To hold the respondents liable under such circumstances would be to make them insurers.

This view of the case renders an examination of other questions discussed unimportant.

The libel must be dismissed.