Palmer v. Costello

Mr. Justice Robb delivered the opinion of the Court: The defendant seeks to apply the maxim, Volenti non fit injuria> and cites numerous cases in which it has been held ap [168] plicablé. Bút in each of those cases the party against -whom the maxim was invoked had possession, or the right to possession, of the property involved. In other words, a party having tho lawful right to exercise dominion and control over his own property may not sit idly by and see that property destroyed through forces negligently set in motion by another, and then collect damages occasioned by his own failure to make reasonable exertions to arrest the threatened disaster. In such a case, the party whose property is jeopardized is required to act, when . the fact of jeopardy is known to him, upon the theory that the way is open to him to act. The authorities cited clearly illustrate this thought. In the case of Mark v. Hudson River Bridge Co. 103 N. Y. 28, 8 N. E. 213, a tugboat collided with a bridge. The owners of the bridge, in endeavoring to save it, attempted to move the tug, and, through their negligence, caused a part of the bridge to fall upon it, thereby placing the tug in a dangerous position, and she was left in this position by the bridge owners. Having full knowledge of the situation, the tug owners did nothing, and the tug subsequently sank. It was ruled that the tug owners should have made reasonable efforts, after they discovered the peril in which their boat was placed, to extricate her therefrom, and that the only damage recoverable was for the injury actually inflicted upon the tug by the bridge owners. It will thus be seen that the tug owners sat idly by and permitted their own property, over which they exercised unquestionable dominion and control, to suffer damage. See also Western Real Estate v. Hughes, 96 C. C. A. 658, 172 Fed. 206; Pennsylvania R. Co. v. Washburn, 50 Fed. 335; Harrison v. Missouri P. R. Co. 88 Mo. 625. In the present case, the dominion and control of the plaintiff over this boat terminated when the marshal took possession of her. Thereafter he had no more control over her than over any other boat not his own. That control, by operation of law, was transferred to the marshal and was complete and exclusive. While in his custody the law made it his duty to exercise reasonable care and diligence in protecting her; and it was not the duty of the plaintiff to direct t^ie marshal as to the proper steps [169] to bo taken to that end. The libellants appear to have undertaken to do so, but the making of suggestions by them in no way relieved the marshal of the duty which the law imposed upon him. The further suggestion is made that, because the plaintiff, prior to the sinking of the boat, filed a cross libel, he became an actor in the litigation, and, as such, was bound to notify the marshal or the court of the alleged negligence in the care of the boat. The filing of the cross libel in no way affected the control of the boat. That control still remained in the marshal under the original libel, and his duties and responsibilities did not change. The judgment must be affirmed, with costs. Affirmed.