McGrew v. Stone

• Decision Date: 07 January 1867
• Citation: 53 Pa. 436
• Parties: McGrew <I>et al. versus</I> Stone.
• Court: Pennsylvania Supreme Court

53 Pa. 436

McGrew et al. versus Stone.

Supreme Court of Pennsylvania.

January 7, 1867.

ERROR to the Court of Common Pleas of Allegheny county.

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Hamilton & Acheson and Kuhn & Cassidy, for plaintiffs in error, cited Angell on Highways, § 445; Angell on Carriers, §§ 643 and 644; Secombe v. Wood, 2 M. & Rob. 290; Vantine v. The Lake, 2 Wallace, Jr., 52; Scott et al. v. Hunter et al., 10 Wright 192; Beach v. Parmeter, 11 Harris 197; The Europa, 2 Eng. L. & Eq. R. 557; The Virgil, 7 Jur. 1174; 2 W. Rob. 205. Cited in Abbott on Shipping, note 1, p. 230; Angell on Highways, § 430; Lynch v. Nurdin, 1 Q. B. 29-35, 41 E. C. L. R.

Woods and Jones & Howard, for defendant in error, cited Baker v. The Hibernia, 1 Phila. R. 228; Browne v. Stone, Id. 141; 1 Hilliard 141 et seq.; Beatty v. Gilmore, 4 Harris 466; Scott v. Hunter, 10 Wright 192.

The opinion of the court was delivered, January 7th 1867, by AGNEW, J.

This case cannot be well stated without a summary of the facts gathered from the evidence, and the rejected offers assigned now for error. They are about these: The basin in the Monongahela river, opposite the city of Pittsburgh, formed by the slackwater dam above the bridge and the shoals below the city, is filled with shipping; the wharf from the bridge to the point being lined with coal-boats, canal-boats and steamboats, and perhaps some other craft. On the south side of the river, for a mile or more below the bridge, the shore is occupied by boats at different points.

The coal trade of Pittsburgh with the country below on the Ohio and Mississippi is very great, amounting to millions of bushels. It is carried on chiefly in large barges or flats, very deep, broad and unwieldy, carrying from eight to eleven thousand bushels in each. Those coming chiefly down the slackwater, after passing through the locks, are collected in fleets in front of the city, and moored in convenient and safe places to await freshets in the river to carry them out, called coal-boat rises. About twelve feet over the bars is considered a good coal-boat rise. They are then taken in tow by a steam coal-tug and floated to market below. Safety of moorage would seem, therefore, to be a matter of moment to the shipping filling that basin, and confined to it in low states of water.

The defendant, being engaged in the coal trade, had a fleet of barges laden with coal lying moored at and fastened to one of the piers of the bridge, between five and six hundred feet from the southern shore, where a strong current prevails in a coal-boat rise.

While so moored one of his barges sprang a leak, and sunk so rapidly after discovery of her condition that she had to be cut loose from her lashings to prevent her carrying others down. After sinking she was carried beneath the surface downwards, and across to the south side, where she lodged beneath the plaintiff's boats, some of which, when the water subsided, settled upon her and were sunk and injured. The action was for this injury. The cause of the leak which sunk the defendant's barge was unknown. All that is known of it is, that when recovered she was found to have her bow planks sprung at the knuckle of the rake, opening a seam of about half an inch. The doctrine of the court below was, that as the cause of sinking was unknown, it must be presumed it happened without the defendant's fault, and therefore that the place of moorage was immaterial, and to be excluded from the consideration of the jury. On this principle the danger of mooring to a pier out on the river where, on a rise, a strong current sets in accompanied by floating drift, was ruled out of the proof, and the court instructed the jury that their inquiry began with the conduct of the defendant when he discovered his boat was sinking; and their question was, whether he was then guilty of negligence or carelessness in regard to something which naturally conduced to the plaintiff's injury. The judge, with commendable fairness and clearness, planted himself squarely upon this position, both in his rulings upon the evidence and his charge, giving to the defendant every advantage he could ask for revision. The doctrine of the court negatives all duty in moorage, and throws upon others the risk of sinking there; as though it were inevitable accident, and not arising from any fault of the defendant in the selection of a place for his boats to lie. In argument it was said that no one but the bridge company could complain of his tying up his boat to their pier, and that it was as lawful to moor in the stream as at the shore. But did the defendant owe no duty to others who had the same rights of moorage in the river at that place? If others had the same right of mooring in that basin, and many vessels were there, if these coal-barges are large, unwieldy and difficult to be handled; if owing to their size and immense tonnage of coal they are liable to accident and readily to sink; and if the place of moorage was unsafe, and likely in case of sinking to produce injury to some one else, did not a duty lie upon the defendant to avoid this place, and to seek a safer one? The maxim sic utere tuo ut alienum non lædas clearly applies. Where a party is dealing with a subject full of risk, greater caution and diligence are required to prevent injury by reason of it; more care is required of him who stores powder or petroleum than of him who keeps coffee or sugar. The general rule is, that a man is answerable for the consequences of a fault which are natural and probable, and might...