Pennsylvania R. v. Atha

22 F. 920 | D.N.J. | 1885

Nixon, J.

The decision turns upon two questions: (1) Were the respondents responsible for the acts of Mullins in regard to the location of libelant’s barge ? (2) Did they possess such knowledge of the circumstances of the property," when they purchased, as to put them upon inquiry concerning the condition of the river bed in front? If the facts shown in the testimony warrant the answer of both these questions in the affirmative, there should be a decree for the libelant; if not, the libel must be dismissed.

1. In regard to the first, the respondents were the owners of a wharf upon a public, navigable river, to which vessels loaded with freight were in the habit of coming. In the present case, and, perhaps, generally, the respondents were the consignees of the cargo. The master of the libelant’s barge was a stranger there, and Mullins was the only person ho found on the promises who assumed any responsibility in directing him whore to go, or what to do. He was engaged a,s stove» dore in unloading all vessels consigned to the respondents, and was paid by them for his services, the amount being afterwards deducted by the consignees from the freight due to the master. Mr. Atha testifies that, although no person had special authority over the wharf, or arriving vessels, it was necessary for Mr. Mullins, in the course of his duties, to request the captains to move their boats, so that it would be possible for him to unload them; and that, so far as if appertained to all that was necessary for him to continue his work, he made them — requested them — to lie here or there, as a matter of course. Page 186 of Record. He was aware that Mullins was in the habit of exorcising such authority, and never found fault with him for so doing. In addition to this, it appears that, after the master had moored the barge alongside of the dock, under Mullins’ specific directions, ho reported to the clerk of the respondents in the office, and was referred by him to Mullins, as the representative of the consignees in the matter of discharging the cargo.

I do not think it is competent, under the circumstances, for the principal to shield himself from tiro responsibility of the acts of his agent by setting up that he did not authorize the act from which the injury arose. The master of the barge had a right to assume that the single person he found in the employ of the consignees could speak and act in their behalf, and that, when so speaking and acting, he was not overstepping the limits of liis employment. The case is much stronger than the recent one of Barber v. Abendroth, in the supreme court of New York, (26 Daily Reg. 148.) Suit was there brought to recover damages sustained by the boat of the plaintiff while moored at the defendants’ wharf on Byram river at Port Chester. She was taken to the wharf laden with sand, consigned to the defendants. A contract had been entered into with the defendants by Whitehead Bros, for the sale of the sand and its delivery to the defendants at their clock. The plaintiff arrived with the sand in the vicinity of the dock near the middle of the night. lie found a watchman on the dock. He had received no directions as to where he should place liis boat to have the sand unloaded. He applied to the watchman, who was there in the service of the defendants, for directions as to where the sand was wanted, and the watchman said he could not tell; but in the course of the interview he indicated to him a point on the wharf where sand bad previously been received by the defendants. He went to that point, and was assisted by’the watchman in securing bis boat. When the tide went oat the boat rested on the ground, which proved to be so uneven,that the boat settled about her midships, receiving the in-j ury which was the subject of the action. It was proved on the trial that the watchman’s duties!were limited to the protection of the premises from fire or burglary. “But,” says the court, “the fact that the yatehman was upon the premises, in their apparent charge and possession, was a direct indication that he so far represented the defendants as to be authorized to indicate what might properly be done by a vessel arriving at tlie wharf on the defendants’ business during the night-time when no other person was to be found who could be at the time consulted. The fact of his being there, in the service of the defendants, was an indication that it was his duty, as well as his authority, to look after their affairs, and in so simple an act as the moving of a vessel, could] indicate where she might be properly or safely placed. ” The court sustains its position by quoting its oft-repeated adjudication, that—

“The principal is, as to third persons not having any notice of a limitation, bound by the ostensible authority of the agent', and cannot avail himself of secret limitations upon the authority and repudiate the agency where innocent third persons have in good faith acted upon the ostensible authority conferred by the principal. ” Doubleday v. Kress, 60 Barb. 181; Lefler v. Field, 50 Barb. 407; McNeil v. Tenth Nat. Bank, 46 N. T. 325.

2. With regard to the second question, there is not so much dispute or difficulty about the law as there is in its application to the facts. The owner or occupier of a dock is undoubtedly liable for damages to a person who makes use of it- by his invitation, express or implied, for an injury caused by any defect or unsafe condition of the dock which he negligently causes or permits to exist, provided, of course, the person himself exercises due care. He is not an insurer of the safety of his dock, but he is required to use reasonable care to keep it in such a state as to be safe for the use of vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such care, — if there is a defect which is known to him, or which, by the use of ordinary prudence and diligence, should be known to him, — he is guilty of negligence, and liable to the person who, using due care, is injured thereby. Nickerson v. Tirrell, 127 Mass. 236; The John A. Berkman, 6 Fed. Rep. 535. In Sawyer v. Oakman, 7 Blatchf. 290, the owner of a wharf was held bound to notify the master of a vessel, which was about to haul into the wharf, as to the condition.of the bottom where the'vessel would ground at the fall of the tide, knd was held liable in damages for injuries to the vessel caused by unequalities in the bottom, due care having been exercised by the vessel.

When the respondents purchased the property, as before stated, it had been used as a ship-yard., and a marine railway extended from tbe shore down into the bed of the river. When the grantees removed from the premises the buildings and other improvements reserved by the conveyance, they left standing above and below the water the pilings which had supported the railway. The respondents put up a bulk-head in front of the dock, partially filled in the same, and covered up the pilings where the filling in was done, but did not disturb those outside the bulk-head in the bed of the river. Mr. Atha excuses himself for leaving them by saying he did not know they were there. But he made no inquiry, and took no steps to ascertain whether they were there or not. I think it was negligence for not doing so on completing his wharf for use, and, being aware of the existence of the railway, he owed it to the public to remove, or at least to attempt to remove, tbe obstructions left by the former owners. From the large number of pilings afterwards taken out by Yan Ness it is manifest that a little inquiry would have given him knowledge of the obstructions to the navigation, and of the perils to the use of t. ' wharf, which had been left in front of the dock. Holding that the omission of such inquiry was negligence, there must be a decree for the libelant, and a reference to ascertain the damages.