[1860.] THOMPSON v. NORTH EASTERN Railway Company. rudder chains,—I see no reason for disturbing the verdict; more especially when one considers that even if the evidence had preponderated in favour of the defendants, in shewing that the fact of the vessel not answering the helm was occasioned by the fouling of the rudder chains, that might have been the result of pure accident, without any negligence on the part of the plaintiffs, and the verdict would have been a proper one on that supposition. For if by pure accident, without any negligence in the person who sustains injury, circumstances arise which I would not have been attended with disastrous results without the intervention of some obstruction or other cause, which is to be referred to the negligence of the party sought to be charged, the party guilty of the negligence is liable for the injury caused, because it is fairly attributable to his negligence, and there is no act of the other party materially conducing to it. There remains the important question, whether the knowledge of the pilot in charge of the vessel was a circumstance which so affects the plaintiffs that it may be said that the allowing the vessel to be navigated along this channel under the circumstances of danger which had arisen by the default of the defendants was not the act of a prudent owner. The first question which arises upon this part of the case is, whether the relation of pilot and shipowner is such that the knowledge which the pilot had of the state of the basin must be taken to be the knowledge of the plaintiffs. It is not necessary to decide that question in this case; because, assuming all which the pilot knew to have been known by the plaintiffs, that knowledge would not preclude the right of the plaintiffs to recover in the present action. Clayards v. Dethwick (a) is a direct authority that where (a) 12 Q. B. 439. danger has been created by the wrongful or negligent act of another, if a man, in the performance of a lawful act, voluntarily exposes himself to that danger, he is not precluded from recovering for injury resulting from it, unless the circumstances are such that the jury are of opinion that the exposing himself to that danger was a want of common or ordinary prudence on his part. Now that issue was not proposed by the defendants to be put to the jury. They stood upon the fact that the knowledge of the state of the basin by the pilot was the knowledge of the plaintiffs, and was in point of law an answer to their claim. But that is not so, unless the circumstances were such that the attempt to navigate the ship under them was an act which no man of ordinary prudence would have committed; and to raise that issue would have been altogether inconsistent with the case which the defendants were most anxious to establish, viz., that there had been no negligence whatever on their part. We must dispose of the case on the facts found by the jury, and on those facts I am of opinion that the knowledge of the pilot (assuming that it was the knowledge of the plaintiffs) was not enough to defeat the claim of the plaintiff's. HILL J. I am of the same opinion. The first question is whether there was evidence to warrant the jury in finding that the defendants were guilty of negligence in the performance of the duty cast upon them. It is important first to see what that duty was. The defendants are a Company, empowered by Act of Parliament, to construct docks for the use of the public, and to [1860.] THOMPSON V. NORTH EASTERN Railway Company. [1860.] THOMPSON V. NORTH EASTERN Railway Company. take tolls from those who use the docks, and to appro- The next question is, whether the knowledge of the (a) 3 H. & N. 164. Lord Chief Justice has said upon that point. We do not decide that the knowledge of the pilot was the knowledge of the plaintiffs; but, assuming that it was, there is nothing in the evidence to shew that the pilot had such knowledge as would have prevented a man of ordinary prudence from attempting to take the vessel out of the docks. The pilot had knowledge of the fact of the obstruction, but he had not knowledge that it made the navigation so highly dangerous as to render it inconsistent with the exercise of ordinary prudence to make the attempt. BLACKBURN J. I also am of the same opinion. The duty imposed by law upon a Company in the position of the defendants is laid down in the passage read by my brother Hill, from the judgment of the Court of Exchequer Chamber, in Parnaby v. The Lancaster Canal Company, in error (a). That doctrine is binding upon us, and I fully agree with it. The duty of a dock or canal Company is to keep their dock or canal in such a state as to be reasonably safe for navigation by that class of vessels for which they hold it out as fit and ready. The question whether there was negligence on the part of the defendants in this respect was a question of fact for the jury, and there was ample evidence of it. So also was the question whether there was negligence on the part of those who navigated the plaintiffs' vessel, and with the finding of the jury upon that the Lord Chief Justice is not dissatisfied. The remaining question is; assuming the plaintiffs, the shipowners, to be so far identified with the pilot for the purposes of the present case as to make his knowledge (a) 11 A. § E. 242. 243. [1860.] THOMPSON V. NORTH EASTERN Railway Company. THOMPSON V. NORTH EASTERN Railway [1860.] their knowledge; whether his knowledge of the state of the basin, and the depth of water in it, disqualified the plaintiffs from recovering for the damage they sustained by the negligence of the defendants in not Company. making the basin reasonably safe for the navigation of the vessel. On this point I perfectly concur with what has been said by the Lord Chief Justice and my brother Hill; the point is, in fact, decided by Clayards v. Dethwick (a). It might have been a question to be left to the jury, whether the pilot, with the knowledge which he possessed, was guilty of such want of reasonable care, in attempting to take the ship out, as that no prudent man would have so acted. But no such issue was raised by the defendants; on the contrary, they strongly contested the state of the basin being improper, and urged that the fact of the pilot having taken out a larger vessel safely ten days before shewed that there was no danger; it would, therefore, have been felt as a sarcasm on the case which the defendants were maintaining if the Judge had asked the jury, in favour of the defendants, whether the pilot, with his knowledge of the state of the basin, was acting as an unreasonable and imprudent man in taking the vessel out. That was a question which, from the course of the trial, my Lord could not be expected to ask the jury. And the rule was not obtained on any such ground. Rule discharged. (a) 12 Q. B. 439. |