Plumer v. Alexander

The opinion of this Court was delivered by Coulter, J. The admission of Walters, the pilot, as a witness, which is the first error assigned, is not sustained by the decisions of this Court on the subject. It is true that in commercial cases, to which this is closely allied, the rules of evidence are not so [85] strictly applied, because persons in some degree interested are often tbe only witnesses of the transaction on which the ease turns. But in this State, and even in England, they have been adopted to a certain extent. The verdict in this cause would not be evidence for the pilot in a suit brought against him for negligence or unskilfulness. If, however, the owners of the dam were made liable, it would free the pilot from responsibility. It may be said that by his exclusion, his unskilfulness or negligence is assumed. On the other hand, however, it may with equal truth be alleged, that his admission would assume that he was not in fault. Starkie, in his Treatise on Evidence, 1 vol. 113, says: “ If the cause depend upon the question whether the agent has been guilty of some tortious act, or some negligence in the course of executing the orders of his principal, and in respect of which he would be liable over to the principal, if he failed in the action, the agent is not competent without a release.” The question here was whether the loss and wreck of the boat was occasioned by the dam, as an obstruction to the navigation, or by the unskilfulness and negligence of the pilot in navigating her. That was a question for the jury; and if the pilot established by his testimony that the loss was occasioned by the dam, he freed himself from liability to the owners, and threw the liability on the proprietor of the dam. It was ruled in Bennett v. Hethington, 16 S. & R. 195, that a witness, although he cannot give the verdict in evidence, in another suit, yet if he be subject to an encumbrance or duty, he is incompetent. The pilot was subject to an encumbrance and duty to the owner, if the loss was occasioned by his negligence or unskilfulness, and that was one horn of the question at issue before the jury. In 2 Y. 92, it was held that in an action against the owner of a vessel for unskilful stowage of a cargo by the mariners, the master, yho was released by the owner, was a competent witness. So also it was ruled in Humphreys v. Read, 6 Wh. 435, that the captain of a canal boat and the steersman were not competent witnesses for the owner, when the defence to the action was an injury to the freight, in consequence of running on a stone in the bottom of the canal, by which water was let in and the freight injured, without a release. And in the Schuylkill Navigation Company v. Harris, 5 W. & S. 28, it was decided, that in- a suit against the Canal Company to recover damages for an injury to the plaintiff’s boat, occasioned by the misconduct of the lock-keeper, the master of the boat was not a witness for the plaintiff, without a release, when it was [86] alleged that the injury arose from the master’s mismanagement. The defence in this cause is that the loss accrued or happened in consequence of the unskilfulness or negligence of the pilot. He was therefore incompetent as a witness for the owner of the boat, without a release. The other objections to evidence are not sustained; and the several answers of the Court to the points proposed by defendant’s counsel state the law fairly on the subject. It was not necessary that the plaintiff should detain his boat in the pool of the dam until the waters were assuaged. Even if there was some temerity in attempting a passage at the time, it is no reason why he ought not to recover, if the dam was an obstruction, obstacle, and hindrance to the navigation. If it was so, the defendants were wrongdoers, and legally answerable to those who suffered damage by their wrong. Possibly a timid man would have lain by in the pool for days. But there is a current in the affairs of men, as well as in the river. And such is the energy, enterprise, and vigour of the American character, that they will take advantage of that current to reach success and a market, even at risk; and who has a right to obstruct them on the highway ? It is even possible that by good luck the plaintiff might have got through, notwithstanding .the peril; but those favours of fortune, which surpass ordinary prudence and care, and are looked at with wonder and amazemeht, do not form the rule from which the law is drawn. The Court carefully say to the jury, in answer to the plaintiffs’ points, that they must be satisfied that the dam was an obstruction to the navigation, at ordinary stages of water, and that the defendants were not answerable, if the wreck was occasioned by the rashness, negligence, or mismanagement of the plaintiff or his crew. But that if the dam was an obstruction to the navigation, and the cause of the wreck, the defendants were answerable, although the stream was high and turbulent. r These are the true elements from which the rule of law on the subject is drawn. Ordinary care, diligence, and skill were required by the owner and his subordinates; but if with these, the dam was such an obstruction to the navigation as to occasion the wreck, the defendant must answer to the plaintiffs in damages, no matter what was the stage of the water. In those streams of the interior of the state, which lead to the pine and mineral regions, navigation is most practicable in flood time. And he who erects an obstacle to it injures the public as [87] well as individuals, and is not entitled to any relaxation of the rigid rules of law. The judgment is reversed on the first error assigned, to wit, the admission of Walters, the pilot, as a witness without a release, and A venire de novo awarded.