Wendell v. Baxter

Metcalf, J. The court are of opinion that there is no legal ground of exception to the instructions which were given to the jury. The defendants owned a wharf in Nantucket, and let a part of it to a steamboat company that transported the mail. That company employed the plaintiff to take the mail bags from the boat and convey them to the post office. He therefore was rightfully on the wharf, with his horse and cart, in the prosecution of his business, when his horse was injured. Access over the wharf to the boat, and from the boat over the wharf, for the purpose of lading and unlading the boat, was the undoubted right of all persons who had occasion for such access. On the foregoing facts, and others which the jury must have found under the instructions which they received, the defendants are answerable to the plaintiff. Mayor & Burgesses of Lyme Regis v. Henley, 3 B. & Ad. 92, 93. Pittsburgh City v. Grier, 22 Penn. State R. 54. They were legally bound to exercise (at least) n’dinary diligence to keep their wharf safe for those who had a right to pass over it; as an innkeeper is bound to keep the access ío his inn, and the passages and apartments in it, safe for those who may wish to enter, or who have entered it legally. The jury have found that the defendants did not exercise such diligence. It has been argued for the defendants, that if they were legally bound to keep their wharf in repair, they were so bound only in favor of those with whom they, as owners, contracted or dealt, and that they had no contract with the plaintiff But the plaintiff’s right of action arises from the duty which the law imposed on the defendants to keep their wharf safe, so long as they should permit it to be open and used, and not from any contract between them and him. Collett v. London & Northwestern Railroad, 16 Ad. & El. N. R. 984, 989. It has also been argued, that the instructions did not accurately limit the defendants’ liability; that the jury were first instructed that the defendants were bound to keep the wharf safe for the uses for which it was made; although it might have been impossible to keep it safe, because the action of the sea [497] might, in one night, have rendered it unsafe, without their knowledge or their power seasonably to apply a remedy. But that instruction was general, and was not intended to state the extent or the limits of the defendants’ obligation. Certainly it cannot be understood to mean that the defendants were bound at all events to keep the wharf continually in repair, and that they would be liable for any injury received through want of its safety, however and whenever such want should be caused. And the last part of the instructions limited the defendants’ duty and obligation, in this case, to the exercise of ordinary diligence, and also limited their liability to the want of ordinary diligence. Of this limitation the defendants, surely, have no cause to complain. In the case of Pittsburgh City v. Grier, above cited, the court said the owners of the wharf were held to “ the utmost care ” of it. Exceptions overruled