6 Whart. 311 | Pa. | 1841
The opinion of the court was delivered by
It is an undoubted rule, that, for a loss from mutual negligence, neither party can recover in a court of common law; and, so general is it, that it was applied in Hill v. Warren, (3 Starkie R. 377; S. C. E. C. L. R. 390,) to the negligence of agents, respectively appointed by the parties to superintend the taking, down of a party wall. Courts of admiralty, indeed, decree according to the circumstances, so as to • apportion the loss; but certain it is that a court of law, whether for its inability to adapt its judgment to the merits of such a case, or whether for any other cause, refuses to interfere at all. It has been pressed upon us, however, that though such be the rule betwixt owners of coasting vessels or wagons, it is because seamen and wagoners are the servants of their employers, and have consequently power to affect them by their acts ; that a carrier is not the servant of his employer, but an independent contractor ; and that there is no more privity betwixt the owner of the vehicle and the owner of the goods, than there is betwixt the owner of a stage-coach and a passenger in it, who may, it is said, have an action against the owner of another coach driven carelessly agains.t it to his hurt, without regard to the question of negligence betwixt the drivers. The argument- is plausible, but the authorities -are against it. Vanderplank v. Miller was the very case of an action by the owners of goods-damaged by collision; and Lord Tenterden, without adverting to the supposed distinction betwixt them and the carrier, directed that, if, there was want of care on both sides, the plaintiffs could not recover. ' The force of the decision is attempted to be evaded by supposing the owners of the goods to have been their own carriers: but nothing in the report gives colour to such a supposition; and owners of both goods and vessel would scarce.have
That there was carelessness on board the William Henry was proved by her own crew. The pilot testified explicitly that the accident would not have' happened if the mate, who was on the look out, had done what was palpably his duty. The Thorn was perceived when she was at the distance of nearly three hundred yards; yet, though he called out to starboard the helm, the order was neither responded to nor repeated. He said further, that the mate gave him no intimation of the Thorn’s presence till she was struck; and that had he done so while she was distant twice the length of his own vessel, he could have cleared her. The mate himself says that he gave no intimation to the pilot at all; and that his call was to the man who was supposed to have the Thorn in charge. It was, then, gross negligence in him to recur to a measure so uncertain, in exclusion of that which was the most natural, easy, and proper. To avoid every chance of accident from the probable drowsiness of the anchor-watch, he ought to have given the order to the steersman of his own vessel, known to be on the alert. Even had it been certain that the anchor watch was equally so, he was bound to know that a vessel at anchor could not be so readily got out of the way, as it could be cleared by another in motion; and it was his duty to take his measures accordingly. Such was the evidence of negligence on board the William Henry; and what was the evidence of it on board the Thorn I
There were three points of fact to which the attention of the jury was at first directed, but from which it was unfortunately withdrawn in the sequel. The Thorn’s position in relation to the channel; the burning of a signal light aboard of her ,* and the conduct of her anchor-watch. As regards two of them, her position and light, there was a conflict of evidence. Four of the six persons who composed her crew, testified that she was anchored out of the thoroughfare or customary track; that the mate set an anchor watch; and that he placed a signal lantern in the peak-halliards. This was before the crew retired to their berths; but the point of time material to the question was the instant of the collision, and what was the state of things then 1 The plaintiffs’ witnesses asserted that the light was burning in its place when they came upon deck, a few moments after the shock; while those on the adverse part, including one of the Thorn’s crew, testified that no such thing was visible, and that they would have seen it had .it been there. Again, the defendants’ witnesses testify that the Thorn was lying in the very middle of the channel; a fact rendered, probable by the depth of her water; and if she was lying there, without a light to mark her position and presence, she had not used those precautions which prudence required. It was, indeed, ruled in Carsly v. White, (21 Pick. 254,) that there is no rule of positive prescription like the ordinances of Oleron, or
Betwixt the stories of those who spoke of the conduct of the anchor-watch, there can scarce be said to have been a differences The pilot testified that he ran forward at the time of the collision, and that no person was then on the Thorn’s deck. Evans, the passenger, said the same; and he, as well as the mate, declared that the first man they saw on board of her, was in the act of coming out of the cabin. M'Cracken, who was one of the Thorn’s crew, deposed that neither light nor watch' had been set; that the crew, at the time of the disaster, were asleep in their berths; that he and Joe, the reputed anchor-watch, slept together in the forecastle; and that, being roused by the jar, they got on deck through the scuttle, where they found that no one had preceded them. In addition, no one pretended that an answer was returned when the Thorn was hailed. On the other side, the master of the Thorn testified that when he came up, he found Joe on deck; the mate said the first man he saw on deck was Joe; and Hess, the seaman, said that he found Joe on deck forward. Now this may have been perfectly true, and yet Joe may have been asleep when his services were wanted; nor is it at all inconsistent with the testimony on the other side. The only witness who pretended to say where he was at the time of the collision, said that he was not at his station; and Joe himself was not called to contradict him. Now, though the rule is that a vessel in motion is bound to shape its course so as to pass another at rest, if need be, without its co-operation, it seems to be the custom of the Delaware for the crew of a vessel, at anchor in the stream, to give such a shear as may prevent a vessel in the act of passing, from running foul of it in case of accident. Had that been done in this instance, the disaster would have been escaped ;-and though the want of co-operation did not justify the mate’s negligence in not taking his measures so-as not to need it,
Instead, then, of being told that, notwithstanding the Thorn may-have been deficient in any, or all, of the preceding particulars, the plaintiffs would be entitled to recover if she was perceived on board of the William Henry in time to be avoided, the jury ought to have been told that if she was moored in the channel, without a light burning at the time; or that if her watch was not present, and did what is customary on such occasions, her people were obnoxious to such a charge of negligence as would bar the action; and that the burthen of proof lay on the plaintiffs.
New trial granted.