Rathbun & West v. Payne

By the Court, Bronson, J. Every boat navigating the canals at night, is required to carry conspicuous lights on its bow. Canal Regulations. When boats meet on the canals, it is the duty of the master of each to turn out to the right hand, so as to be wholly on the right side of the centre of the canal. 1 R. S. 248, § 154. This is substantially like the law of the road. 1 R. S. 695, § 1. Although the plaintiffs have suffered a loss, it is extremely doubtful upon the evidence whether it was not the result of negligence or misconduct on the part of the master of their own boat: but if he was not in fault, there is great difficulty in saying that there was any culpable negligence or want of skill on the part of the master of the defendants’ boat. Whether we look at the evidence alone, or examine it in connection with the charge to the jury, the circuit judge has, I think, very properly ordered a new trial. If both parties were equally in the wrong, neither can maintain an action against the other. Indeed it has been said that a plaintiff suing for negligence must be wholly [401] without fault. Puckwell v. Wilson, 5 Carr. & Payne, 375. Williams v. Holland, 6 id. 23. Lack v. Seward, 3 id. 23. If at the time of the collision both boats, either through negligence or design, were near the centre of the canal, neither having turned sufficiently to the right as the law requires, the plaintiffs must bear the consequences of their own folly. The right of action does not depend upon which boat happened to suffer. There must be a wrong as well as damage, and there is no legal injury where the loss is the result of the common fault of both parties. So too, if the loss was chargeable partly to the want of lights on the bow of the Tariff, the defendants would not be answerable for any thing short of gross negligence on their part. Under the charge, the jury may have found for the plaintiffs, although they believed that the Tariff, at the time of the collision, was improperly without lights on her bow, and on the wrong side of the canal. And besides, as the boat was struck on the side opposite the tow-path, if she was at the time out of place, as seems to be granted by the charge, it necessarily follows that the defendants’ boat was in the proper place for passing. On such a state of facts I think the master of the Black Hawk would only be answerable for gross negligence, or some wanton act. If the Tariff, in passing the bar or shoal, necessarily went to the south side of the canal, and sufficient time had not elapsed for regaining her proper position, that would be an excuse for being out of place. But this was mere matter of excuse on the part of the plaintiffs, and could give no right of action against the other party. If the position of the plaintiffs’ boat was not the result of fault on their part, it was nevertheless their misfortune, and they cannot throw off the consequences upon another. In deciding upon the conduct of the master of the Black Hawk, this excuse must be laid wholly out of view, for he had no knowledge of its existence. If he would not have been answerable had the plaintiffs been without excuse, he cannot be answerable now. The merit or demerit of his conduct cannot depend upon a fact of which he had no knowledge. New trial granted.