Gillikin v. Lake Drummond Canal Co.

PIoKE, J.

We find no error in tbe record wbicb entitles defendant to a new trial. There was ample evidence of negligence on tbe part of tbe defendant company.

Tbe testimony tended to show that, in June, 1904, tbe defendant undertook, for hire, to tow tbe plaintiffs’ vessel through their canal, and was engaged in this undertaking when they passed a large barge of tbe defendant company moored to tbe bank of tbe canal; that tbe suction of tbe tug drew tbe barge away from tbe bank into tbe course of tbe plaintiffs’ vessel, causing a collision and tbe damages complained of; that tbe barge, wbicb was tbe property and under control of tbe company at that time, was improperly and negligently moored, and that tbe plaintiffs were free from fault.

Tbe objection chiefly urged for error was that tbe complaint did not charge or allege negligence in mooring tbe barge as tbe basis of plaintiffs’ demand, but tbe objection is without merit. Tbe complaint, after stating tbe contract, and that defendant was engaged in tbe undertaking at the time of tbe occurrence, and was tbe owner and in control of tbe tug and tbe barge, continues as follows:

“Sec. 5. That defendant, at or near West Greek, about two-thirds of tbe distance from Wallacetown to Lynch’s Wharf, in tbe said canal, negligently and wrongfully and carelessly obstructed its said canal by a large barge, and negligently and ■ wrongfully and carelessly caused plaintiff?s schooner, tbe Dee G. Faren, to be towed by said tug down and upon tbe said barge with great force, and caused said schooner to run foul of and strike against said barge.

*41 “Sec. 6. That, by reason of the obstruction of the canal, and also by reason'of said defendant’s towing said schooner down and upon said barge, causing her to run .foul of and strike same, said schooner was greatly damaged,” etc.

A large barge, negligently moored to the bank of a canal, which, by reason of said negligence, is drawn or floats out into the channel of the canal, causing a collision with a passing vessel and inflicting serious damage, comes clearly within the meaning of the term “obstruction,” defined by the books to be “An impediment, a hindrance, that which impedes progress.”

Hart v. Albany, 3 Paige, 213 . The complaint, we think, contains a sufficient statement of facts to make out plaintiffs’ cause of action and to apprise the defendant fully of the grievance asserted against him, and the injury for which redress is demanded. Assuredly, on the facts presented, if defendant desired that the complaint be made more specific, it should have made a motion to that effect.

Allen v. Railway, 120 N. C., 548 .

There is no error, and the judgment for plaintiffs is affirmed.

No Error.