Garfield & Proctor Coal Co. v. Rockland-rockport Lime Co.

• Decision Date: 23 June 1903
• Citation: 184 Mass. 60,67 N.E. 863
• Parties: GARFIELD & PROCTOR COAL CO. v. ROCKLAND-ROCKPORT LIME CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 60

67 N.E. 863

GARFIELD & PROCTOR COAL CO. v. ROCKLAND-ROCKPORT LIME CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1903

COUNSEL

Hutchins &amp Wheeler, for plaintiff.

Gaston Snow & Saltonstall and Malcolm Donald, for defendant.

OPINION

LATHROP J.

The justice of the superior court, who tried this case without a jury, found for the defendant, and stated the reasons for his finding. Some of these reasons do not appear to be in accordance with the evidence, nor to be warranted by it; and the judge concludes his subsidiary findings by the statement that the master of the vessel 'knew that, in order to reach the berth designated, his keel must plow the mud a depth of two feet, and that the bottom would be searched by his barge as it had not been searched by a vessel before.' And he ends by saying: 'I am of opinion that the loss should rest where it falls.' There is no finding that the master of the vessel was not in the exercise of due care, and the theory on which the decision apparently rests is that the master took the risk. We will now point out wherein it seems to us that the judge was not warranted by the evidence in some of his subsidiary findings. In the first place, the judge states: 'It does not appear that any vessel had ever been in the dock before, drawing more than twenty feet of water.' Crockett, a witness for the defendant, who was interested in the defendant company, and had charge of its local business at Rockland, testified that prior to June, 1900, when the accident occurred, 'the wharf had been used for loading and unloading vessels of all sizes--from small schooners to large ships drawing more than twenty feet.' Norton, an employé of the defendant testified in its behalf that he had seen a vessel in this dock, drawing more than the plaintiff's vessel--'a vessel that drew twenty-three feet, at least.' The judge further says: 'The captain of the harbor tugboat employed by the barge told her master that he thought it doubtful whether there was enough water.' Holmes, the master of the tugboat, testified that he told the master of the barge that he thought it was doubtful if there was water enough to go into that berth, and that the master asked him if the bottom was all right there and Holmes said that it was, as far as he knew. This puts a somewhat different light upon what the judge evidently considered a warning. We are also of opinion that the judge was not warranted in finding that 'the master knew that his keel must plow the mud a depth of two feet.' There was evidence that the vessel drew 21 feet forward, and 22 feet aft, and that there were figures on the bow and stern indicating the draught. The principal damage to the vessel was just forward of amidships, where the draught would be less than 21 feet 6 inches. The judge found that other vessels 'have lain there before without injury.' There was evidence to warrant a finding that vessels had lain at the dock before without injury, but it does not appear that these vessels had rested on the ledge. While such evidence is often admitted in this class of cases, its admissibility is very questionable. It would seem to come within the rule that the fact that other persons have not suffered by an alleged defect is immaterial. Aldrich v. Pelham, 1 Gray, 510. But if such evidence is admissible, to entitle it to any weight it should appear that the other vessels were of the same length, breadth, and flatness as was the plaintiff's vessel, and were as heavily loaded as she was. The defendant made no attempt to prove any of these things. The value of such evidence is to show the existence of no defect, but, as was said by Judge Wallace in Smith v. Havemeyer (C. C.) 36 F. 927, 928, it becomes quite unimportant when it appears beyond doubt that there are defects, capable of producing mischief, which could have been readily discovered by proper examination. The general rules of law which are applicable in cases of this character are the same in England and in this country, and are the same at common law and in admiralty. They are as well stated in the case of Nickerson v. Tirrell, 127 Mass. 236, 239, as perhaps in any case: 'The owner or occupant of a dock is liable in damages to a person who, by his invitation, express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care--if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him--he is guilty of negligence, and liable to the person who, using due care, is injured thereby. Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; Thompson v. Northeastern Railway, 2 B. & S. 106; Mersey Docks v. Gibbs, L. R. 1 H. L. 93.' Other cases bearing upon this point are Smith v. Burnett, 173 U.S. 430, 19 S.Ct. 442, 43 L.Ed. 756; Barber v. Abendroth, 102 N.Y. 406, 7 N.E. 417, 55 Am. Rep. 821; Barrett v. Black, 56 Me. 498, 96 Am. Dec. 497; Sawyer v. Oakman, 1 Low. 134, Fed. Cas. No. 12,404; Id., 7 Blatchf. 290, Fed. Cas. No. 12,402; The John A....