City of Petersburg v. Applegarth's adm'r

1. According to the principles of the common law, the owner of a wharf who receives or is entitled to receive wharfage for vessels moored to • • • • said wharf, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf in which vessels lie while moored thereto, free from obstructions, and is liable for any damage done to- any such vessel by reason of the neglect of such duty; and the same principles apply, whether such owner be an individual, or a corporation, whethej1 such corporation be private or municipal. 2. The city of Petersburg owns a wharf in the Appomattox river, for the use of which the city is authorized to charge and does charge wharfage. In October 1872 the vessel of A not being able to get to the wharf at which she was to deliver her load on account of an obstruction in the stream by another vessel, drew up to the city wharf and moored to it, and whilst waiting there she sunk on the next low water, from a pile going through her bottom. This pile was oak, being about two feet from the wharf, in the stream where a vessel at the wharf would probably lie, and was not visible at low water, though it was some two feet or more above the bed of the river, and was firmly fixed there&emdash;Held : 1. The allowing such an obstruction in the place where it was, was negligence; and the city of Petersburg being the owner of the wharf, is liable for the damages occasioned by it. 2. The fact that the city had appointed a port warden whose duty it was to attend to the removal of obstructions in the stream, and to attend to the duties of the city in regard to the city wharf, does not exempt the city from liability for the damages. The port warden in this matter is but the agent of the city, and the principal is always bound for the acts and neglects of his agent. The same rule which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation which can only act by an agent. 3. The fact that it has been made by statute the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, cannot relieve the city from her liability. The city is in fact the company owning all the stock and appointing the officers of the company. But even if it was an independent organization, its obligation to perform a duty which the city is also bound to perform on common 1 aw principles, would not relieve the city from its common law liability for the non-performance of such a duty. 4. Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged it. This does not relieve the city from its common law liability in regard to the city wharf. 5. Nor does it make any difference, that in this case no wharfage was actually received by the city, and that it does not usually charge wharfage in cases where the vessel mooring at her wharf is not to be unloaded there. It is sufficient that the city was entitled to charge wharfage.

This is a supersedeas to a judgment of the circuit court of the city of Petersburg, rendered on the 4th day of June 1873, in an action of trespass on the case brought by William Applegarth against the city of Petersburg. The declaration contained four counts. The first was in substance as follows: that before and at the time of the committing of the grievances, hereinafter mentioned, the defendant was the owner, and was possessed of a certain wharf for the landing, mooring, loading and unloading of vessels on the banks of the Appomattox river, within the corporate limits of the city of Petersburg, and known as the city wharf, near to which said wharf there was then a certain obstruction, to wit: a pile before then, by the defendant carelessly and negligently placed, and then being at and upon the bottom of said river, over which pile, at certain states of the tide of said river, the vessel of the ■plaintiff hereinafter mentioned would float, but at r . ’ •other states of said tide said vessel would not float, of all of which premises said defendant had notice at before the time aforesaid; that at the time of the com.mitting of said grievances, and while the defendant so owned and possessed the wharf aforesaid, the plaintiff owned and possessed a certain vessel called the North Carolina, of great value, to wit: of the value of $5,000, then being lawfully, by sufferance and permission of said defendant, at and along side said wharf for reward to said defendant in that behalf; and said defendant liad the management and control of said wharf, and the mooring and stationing of vessels at and near the same, whilst such vessels were at such wharf for the purpose of using the same, and said defendant had the legal right to charge and demand of the said plaintiff wharfage therefor; yet the said defendant, at the place aforesaid, and on the 15th day of October 1872, unskilfully, negligently and improperly moored and stationed said vessel of said plaintiff in that part of said river near said wharf and over said obstruction, to wit: over said pile, and unskilfully, negligently and improperly detained said vessel for a long and improper time over said pile, and until said vessel on the day and year aforesaid, upon the natural and usual fall of the tide in said river, came, fell and lodged upon, and struck against, said pile at the bottom of said river, and there remained and continued upon, and striking •against, said pile for a long time, and thereby became, and was greatly strained, bulged, broken, pierced and injured, and was sunk; in consequence and by reason of which injuries, done by said defendant, said plaintiff necessarily sustained great damage, to wit: a loss of $1,262.43, which said sum he avers he necessarily expended in raising said vessel and her cargo, and in rePairing said vessel, and the farther great sum, to wit: the sum of $650, special damage which said plain-necessarily sustained by being deprived of the use aQd enjoyment of said vessel, and her ordinary gains an dined outward from the wharf. And it was further proved, that on the 25th day of October 1872, whilst the said vessel was being raised, the late 'William Applegarth addressed and caused to be delivered to E. H. Stainback, port warden of said, city, and to Franklin Wood, the mayor thereof, true copies of a notice which is in the words and figures following to-wit: ‘To the Hon. Franklin Wood, mayor of the city of Petersburg: Dear Sir: — This letter will inform you, and through you the city of Petersburg, that I shall hold said city responsible for all damages which I have sustained or shall sustain by reason of the sinking of my schooner the ‘North Carolina’ and her cargo (one hundred and five tons of coal), whilst lawfully lying at the wharf of said city known as ‘the city wharf,’ on the 15th day of October 1872. Said sinking was caused by the carelessness and negligence of said city. I am now engaged in raising said vessel and her cargo, and will be glad to have from said city whatever assistance she may render. Very respectfully, yours, Vm. Applegarth, by Jones & Bernard, his attorneys.’ “ And the court further certifies that the defendant, to maintain the issue on his part, proved the following facts, viz: That when the wharf of the defendant at which the North Carolina was sunken was built, all its fender piles were oak, and all the piles on which the string timbers rested were pine. That the fender piles were placed about thirty feet apart, and.are there still and none of them missing, and that the fender piles are all visible at high water, and that the oak pile on which the vessel sunk is smaller and not like the fender piles at said wharf. That some time between 20th and 30th September 1872, that part of the river along the whole length of the city wharf at which the North Carolina sunk, had been dredged to within about two feet of said wharf; and that the reason why it was not dredged nearer the wharf was for •fear said wharf might be undermined and caused to fall; and that it was more than probable if the pile on which the North Carolina sunk had been there when the dredging was done, the shovel of the dredge would have struck it; that one of the witnesses was a member of the board of directors of the Lower Appomattox company, whose president and directors are appointed by the common couhcil of the city of Petersburg, and that the said city, for the last three years, has furnished the money to open and keep open the Appomattox river; but that since December 1871, the United States government has had charge of the river, and commenced operations in opening and -cleaning out; that the dredging aforesaid, between 20th and 30th September 1872, was made by said witness under contract with the Lower Appomattox company; that he had no orders to dredge the river regularly; but when he did so, it was under a special contract with the Lower Appomattox company, and that under a like contract he dredged out another vessel that was sunk in the river at a different point between the first and latter part of October 1872; that the pile which sunk the North Carolina did not resemble the fender piles of said city wharf; that about eight or ten days before the sinking of the North Carolina, a three-masted schooner lay near the same spot of the sinking, but received no injury as far as known; that timbers often floated down the river from above; that during the late war the Confederate government built two bridges across the river, not far from the city wharf, at which bridge oak piles were driven down. “ It was also proved that E. H. 'Stainback was the port warden of the city of Petersburg since 1865, and that the conversation which took place two or three years ago, as proved by the plaintiff’s witness Brown, between him and E. H. Stainback, the port warden of Petersburg, occurred in November 1870, and the obstruction referred to by the witness Brown was reported to the Lower Appomattox company with directions to have it taken out, and it was never seen there •afterwards by the port warden; that no demand was made by the city for Wharfage of the captain or officers of the North Carolina, because she had no cargo be lan(Jed there, and it was not the custom of the port warden to claim wharfage in such cases.” The foregoing are all the facts certified in the second bill of exceptions. In the first, besides the other evidence therein set forth, it is stated that “the plaintiff further gave in evidence section 20, page 8, and section 30, page 11, of the charter, and chapter 16. of the printed ordinances of the city of Petersburg,, in the words and figures following, to wit: “ Section 20, page 8, city charter: “ 20. The common council shall have authority to provide by ordinance for the appointment of such officers as shall be necessary or proper to carry into full effect any authority, power, capacity or jurisdiction which is or shall be vested in the said city, or in the-common council, or in the mayor or aldermen thereof,, except as hereinafter provided for; to grant to the officers so appointed the powers necessary and proper-for the purposes above mentioned; to define their duties, to fix their terms of office, to allow them reasonable fees and compensation, and to require and take of all or any of them such bonds, obligations or other-writings as they shall deem necessary or proper to-ensure the proper performance of their several duties. All officers so appointed may be removed from office at the pleasure of the common council; and unless their terms of office be otherwise fixed by ordinance, they shall be considered as holding their respective offices, at the pleasure of the common council. “Section 30, page 11, city charter: “ 30. It shall be lawful for the common council to. establish and construct landings, wharves and docks, on any ground which does or shall belong to the said city, and to repair, alter or remove any landing, or dock which has been, or shall be so constructed, and to lay and collect a reasonable duty on the vessels coming to and using the same; and they shall have power to pass and enforce such ordinances as shall be proper to keep the same in good order and repair; to preserve peace and good order at the same, as well as at all other wharves and landings in said city, and to regulate the manner in which they shall be used. They shall have power ako to appoint as many port wardens for the port of said city as may appear necessary; to prescribe their duties, fix their fees, and make all regulations in respect to such officers, as to them may seem expedient. “ Chapter XVI.—Concerning the city wharf. “§ 1. Vessels lying at the city wharf shall for every twenty-four hours that they may lie there, pay two cents per ton, one half of which shall be retained by the port warden, in full for his services. If any such vessel shall remain at said wharf a less time than twenty-four hours, her master or owner shall pay the same rates as for twenty-four hours. “§ 2. If any master or owner of any such vessel sháll refuse or neglect to pay the said rates on application by the port warden, he shall be liable to pay double the said rates. “§ 3. It shall be the duty of the port warden to remove obstructions to the navigation of the river within the city. If any master or owner of a vessel throw ballast overboard in any part of the river within the city, or suffer it to be done, he shall forfeit ten dollars-for every such offence. If any vessel, boat or lighter be sunk in any part of the river within the city, the owner or master thereof shall remove the same within thirty days after notice from the port warden so to do. If he fails so to do, the port warden shall cause the 1 r same to be done,' and draw on the chamberlain for the expense, retaining possession of the vessel. If the expense be not refunded, with ten per cent, damages, within ten days after such removal, the port warden shall sell the vessel at public auction, and out of the proceeds of sale shall refund the said expenses, with ten per cent, damages, and shall pay the balance to such master or owner. If the proceeds of sale be not sufficient to pay the said expenses, and ten per cent. damages, the chamberlain may recover the residue from the owner or master of such vessel. If the port warden shall fail to perform any duty hereby required of him, he shall forfeit ten dollars for every such of-fence, and each week of such failure shall constitute a distinct offence. “ § 4. All goods landed on the city wharf, and remaining thereon longer than the space of forty-eight hours, after notice to the owner or consignee thereof to remove the same, shall be liable for the payment of twenty-five cents for every ten feet along said wharf occupied by such goods, for every twenty-four hours the same shall so remain, longer than the said space of forty-eight hours. If the said rate be not paid on application, the goods, or so much thereof as may be necessary, may be sold to pay the same. “§ 5. When the city wharf shall be rented, the lessee thereof shall be the port warden, and shall be entitled to all the profits arising therefrom, agreeably to the rates hereby established.” The counsel for the plaintiff moved the court to instruct the jury as follows: Ho. 1. If the jury believe from the evidence, the vessel of the plaintiff’s decedent (Wm. Applegarth, dec’d,) was on or about the 15th of October 1872, lawfully lying at the wharf known as the city wharf, and was, whilst so lying at said wharf, injured by a sunken pile or other obstruction in the Appomattox river, at or alongside of said wharf, and if they further believe from the evidence, that at the time of the injury said wharf was owned by the defendant (the city of Petersburg), and that the said city had possession of and exclusive supervision and control over said wharf, including the right to demand and collect wharfage of and from vessels lying at said wharf, and had like supervision and control over that part of said river adjoining said wharf, and in which vessels lying at said wharf usually float, and if they further believe from the evidence, that at the time of such injury it was the duty of said city, or of any officer or agent of said city, appointed and removable by said city, and subject to her control, to remove obstructions to the navigation of said, river at and near said wharf, they must find for the plaintiff, unless they further believe that said Applegarth, or some agent of his in charge of his said vessel at the time of the injury, by his fault contributed thereto. Ho. 2. The owner of a wharf receiving tolls for its use, or having the right to demand and collect wharf-age of vessels lying thereat, is bound to keep it in reasonably good condition, so that, as far as by the use of . ordinary care, vigilance and skill, such owner can make it so, it shall be fit for the use of any vessel, of the class usually frequenting and mooring at such wharf, and having the right of access thereto; and the-existence of piles or other obstructions under the water, and projecting above the ground at the bottom in that part of the river adjoining said wharf, and in which vessels lying at the wharf usually float, is presumP^ve evidence of negligence on the part of such owner; and it is not sufficient excuse to show that the owner did not place the obstruction there, or even know of their existence. Ho. 3. If such wharf owner by his servants has the means of knowing the state and condition of his wharf, and of the liver at, adjoining and near thereto, that is to say, in .that part of said river in which vessels lying at said wharf usually float, and is negligently ignorant thereof, and an injury is occasioned by the' imperfect condition of said wharf, or by an obstruction in the water at and near said wharf, and in said part of said river, such ignorance makes the wharf owner responsible to ‘the same extent as if such owner knew of such imperfect condition of said wharf, or of the existence of such obstruction at or near said wharf, and in said part of said river, and negligently suffered the same to exist. Ho. 4. If such wharf owner knew of the existence of an obstruction to the navigation of the river at and near his wharf, in that part of said river in which vessels lying at said wharf usually float, and leave the same open and accessible to all vessels accustomed to move and lie thereat, without notice or warning to such vessels of such obstruction, and any damage arise in consequence thereof, said wharf owner is responsible therefor. Ho. 5. A municipal corporation, unless exempted by statute, is responsible for the acts and omissions of its servants, upon the same principle and to the same •extent as a private individual. But it is necessary, in order to make a corporation liable for the negligence of an officer, that the officer should be appointed and removable by the corporation, and subject to its control in the details of the particular work. Ho. 6. If the jury find for the plaintiff, they must give damages that will remunerate the estate of the late William Applegarth for the loss necessarily incurred in raising the vessel and repairing her, and for the use of the vessel during the time necessary to make the repairs and fit her for business. And thereupon the counsel for the defendant objected to the court giving the said instructions, Hbs. 1, 2, 3, 5 and 6, or either of them, and moved the court to instruct the jury as follows-: 1st. If the jury shall believe from the evidence, that the vessel of the plaintiff' was sunk and damaged by striking against a pile in the Appomattox river, but that said pile was no part of the wharf of said city, nor used as a part thereof, then they must find for the defendant, unless they believe from the evidence that the defendant or its agents, under its authority or instructions, placed or caused said pile to be placed in said river, or unless said defendant or its agents, having knowledge or notice of the same, permitted it to remain, and failed or neglected to notify the plaintiff", or the captain or officers of the vessel of its existence there; and it is incumbent on the plaintiff to prove affirmatively that the defendant or its agents, under its authority, placed or caused said pile to be placed in said river, or had such knowledge or notice, and permitted it to remain, or failed or neglected to notify the plaintiff or the captain or officers of the vessel as aforesaid. 2d. If the jury shall believe from the evidence, that the vessel of the plaintiff was sunk and damaged by a P^e Appomattox river, but that such pile was no part of the wharf of the defendant, nor used as a, part thereof, and that the duty was imposed by law on Port warden for the port of Petersburg, appointed ^ie common council of said city, under an act of the legislature of Virginia, to keep said river free from obstructions, and that said port warden neglected his duty in that respect, and in consequence thereof said pile was permitted to remain in said river, and said vessel was sunk and injured thereby, the jury must find for the defendant. 3d. If the jury shall believe from the evidence, that the vessel of the plaintiff was sunk and injured by striking against a pile in the Appomattox river, and that such pile was a part of the wharf belonging to the defendant, or was used by the defendant in connection therewith, but that said pile was latent, then they must find for the defendant, unless they shall also believe from the evidence that the defendant or its * agents had express notice of the existence of said pile, or unless its existence was so notorious as to be evident to all who had occasion to pass the place where it was; and it is incumbent on the plaintiff to prove affirmatively such notice or notoriety of existence. 4th. The law does not require the defendant to scour and drag the river opposite to or alongside of its wharf continually, to ascertain what obstructions might be there, or keep guard along the banks of the river to prevent the commission of injuries by others; and if the jury shall believe from the evidence that the vessel of the plaintiff’was sunk or injured by striking-against a pile in the Appomattox river, and that said pile was not visible to persons or vessels navigating said river or on the shore, and that there is no satisfactory evidence as to how such pile came to be where it was, or of the probable cause of its being there, or that the defendant or its agents knew it was there, then the jury must find for the defendant; less they shall be satisfied from the evidence that the defendant or its agents had failed or neglected to use a a reasonable care and caution to keep the river in suitable condition for safe navigation of vessels opposite and alongside of said wharf; and it is incumbent on the plaintiff to prove affirmatively such failure or neglect. 5th. That in order to establish negligence against the defendant it is incumbent on the plaintiff to prove some fact which is more consistent with negligence than with the absence of it; and if the evidence in the cause is equally consistent with the existence or nonexistence of negligence on the part of the defendant or its agents, then the jury must find for the defendant. 6th. If the jury shall find for the plaintiff, then the amount of damage which they shall assess shall be the amount necessarily incurred in raising and repairing the vessel, and the gross freight which she might have earned during that time, less the expenses and charges which she would necessarily have incurred in earning the same. 7th. The allegations in the plaintiff’s declarations and his proof must agree. ‘ But the court overruled the objections of the defendant’s counsel to the first, second, third, fifth and sixth instructions asked for by the plaintiff’s counsel, and gave the same to the jury, together with the 4th instruction asked for by said plaintiff’s counsel, to which no objection was made by the defendant’s counsel; and also overruled the motion of the defendant’s counsel as to the first, second, third and fourth instructions asked for by the defendant’s counsel, and refused to _ J ’ give the same to the jury, but gave the fifth, sixth and instructions asked for by the defendant’s counsel to the jury; and also, of its own motion, gave the f°ll°wino instruction to the jury, viz: “If the jury shall believe from the evidence, that the vessel of the plaintiff' was sunk and damaged by striking against a pile in the Appomattox river, in that part of the river over which vessels necessarily floated in reaching said wharf, and near to and used as a part of said wharf of the defendant, and that said defendant was authorized by law to establish and keep open, and did so establish and keep open, said wharf, and were entitled to demand and receive wharf fees for landing and discharging at the same, then they may find for the plaintiff such damages as he may have incurred in raising and repairing said vessel, and also the value of the use of the vessel whilst undergoing said repairs.” To the giving of which to the jury the defendant’s counsel objected. Yerdict and judgment having been rendered in favor of the plaintiff against the defendant as aforesaid, the latter applied to a judge of this court for a supersedeas to the said judgment; which was accordingly awarded.