Dygert v. Bradley

By the Court, Sutherland, J. All the witnesses concur in stating that there was not room for the boat of the defendant to pass that of the plaintiff at the place at which it lay, with the depth of water then in the canal. The testimony also shews that neither the plaintiff nor defendant was aware of that fact, but that they both supposed that the defendant’s bcjtli might pass without difficulty. The jury have also found (and the evidence sustains the verdict in that respect) that the injury was not attributable either to negligence or design on the part of the defendant, and that his boat was managed in a prudent and skilful manner. It also appears that the plaintiff’s boat was lying close to the towpath, and that although the canal was not quite as wide there as it was some distance below, several boats had passed her while in that place without difficulty. The boat of the defendant was a large lake boat and heavily laden. No actual fault seems to be imputable to the defendant, and if he is to be held responsible, it must be on the ground that the accident was not inevitable, m as much as the power by which the boat was propelled was entirely under his control, and he was bound to know or ascertain whether he could pass with safety before he made the attempt. The rule in such cases is, that if the injury is occasioned by an unavoidable accident, no action will lie for it; but if any blame is imputable to the defendant, though he had no intention to injure the plaintiff or any other person, he is liable for the damages sustained. Weaver v. Ward, Hobart, 134. Leame v. Bray, 3 East, 593, and cases there cited. Wakerman v. Robinson, 1 Bingham, 213. Percival v. Hickey, 19 Johns. R. 289. Bullock v. Babcock, 3 Wendell, 391. 18 Johns. R. 383. In most of the cases referred to, the question chiefly discussed was whether the action should be trespass or trespass on the case. But the general principle which I have stated, in re [473] lation to the liability of a defendant, is fairly to be deduced from them. -When we speak of an unavoidable accident, in legal phraseology, we do not mean an accident which it physically impossible in the nature of things for the defendant! to have prevented ; all that is meant is, that it was not occasioned,in any degree either remoteiyor., directly, by the want of such care or skill as the law holds every man bound to exercise. This is well illustrated by the case of Wakeman v. Robinson, 1 Bingham, 212; the defendant there was guilty both of negligence and unskilfulness, His horse was young and spirited, and he drove him without a curb-chain; in consequence of which he was less easily managed—in that there was negligence; in his alarm the defendant pulled the wrong rein—there was want of skill; and on either or both grounds he was responsible for the consequence's. But if his horse had been properly harnessed and skilfully managed, and the accident to the plaintiff had still occurred, it would have been held inevitable; although no one will question that the,defendant had the physical power to have guarded against it, either by entirely stopping his horse the moment he saw the plaintiff’s waggon, or by driving at a very slow and moderate pace; but this is a degree of caution which the law does not exact. The liability of the defendant in this case at bar, appears to me to depend upon the question whether he was not bound to know, that from the state of the water in the canal at that time, and from the size of his boat, and her being heavily laden, he could not pass the plaintiff’s boat without hazard; if so, it was his duty either not to have made the attempt to pass, or to have proceeded so slowly and cautiously that no injury could have been produced from the collision. The defendant had the entire control of the speed of his boat, and although it appears that her motion was not rapid, it was not as slow as it might and ought to have been, if he was bound to know that the attempt to pass was hazardous. The case I think should have been put to the jury upon these principles. The charge of the judge was calculated, on the whole, to make erroneous impressions on the minds of the jury. He told them that the plaintiff, when he stopped his boat upon [474] the canal, was bound to select as his station, a safe place, arid such an one as would admit the passage of other boats, and if he selected a hazardous one, and an injury was sustained ™ conse(luence °f his exposed station, he must bear the loss. Now the evidence shews that the station selected by the plaintiff wa^.the place at which boats usually stopped when waiting to pass the lock at that place, and that several boats had passed the plaintiff’s without injury. The whole charge seems to imply that the defendant had a right to an uninterrupted course upon the canal, and that if the plaintiff’s or any other boat stopped in such a place or position as to impede such course, the defendant was not responsible for the consequences, provided he was not guilty of negligence or want of skill in the manner of navigating his boat, and had no actual intention to injure the plaintiff; excluding from the consideration of the jury, or at all events, omitting to present to them the question, whether the defendant was not bound to know, under all the circumstances of the case, that his boat could not pass without hazard, and if he was, whether he ought not to have proceeded more cautiously. I think a new trial ought to be granted, costs to abide the event.