findings of the jury, and particularly the finding that the pilot in charge of The New Zealand knew of the condition of the basin, entitled the defendants to the verdict; or why there should not be a new trial on the ground that the verdict was against the evidence. Bovill, Manisty and Cleasby shewed cause, citing Tuff v. Warman, in error (a), and Clayards v. Dethwick (b). Sir F. Kelly, S. Temple and Mellish, contrà. COCKBURN C. J. I am of opinion that this rule ought to be discharged. With regard to that part of the rule which is grounded on the verdict being against the weight of evidence on the issue of negligence on the part of the defendants, I entirely concur with the verdict of the jury. To open a dock for vessels of large burthen as well as small when it was in such a state that at high tides the water in the basin would apparently be throughout of the depth marked upon the sill, and yet the navigable part of it for vessels of large burthen was restricted to little more than half the apparent width, without any notice to the public, and without pointing out the narrower and deeper channel by buoys or other indications, I think is negligence. Therefore I am of opinion that on this point the verdict was justified by the evidence. With regard to the other point on the evidence,— whether the catastrophe was occasioned entirely by the negligence of the defendants, or whether it was to be attributed partly to the negligence of the plaintiffs in navigating their vessel so as to occasion the fouling of the (a) 5 C. B. N. S. 573. (b) 12 Q. B. 439. VOL. II. I B. & S. [1860.] THOMPSON V. NORTH EASTERN Railway Company. [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 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 plaintiffs. The first ques HILL J. I am of the same opinion. tion 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 appropriate those tolls to their own purposes. The law applicable to this case is distinctly laid down in Gibbs v. The Trustees of the Liverpool Docks (a) and in Parnaby v. The Lancaster Canal Company, in error (b), there cited. In the last mentioned case Tindal C. J., in delivering the judgment of the Court, said (pp. 242, 243), "The Company made the canal for their profit, and opened it to the public upon the payment of tolls to the Company: and the common law, in such a case, imposes a duty upon the proprietors, not perhaps to repair the canal, or absolutely to free it from obstructions, but to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate it without danger to their lives or property." The duty of the defendants, therefore, was to take reasonable care that their dock and basin were kept so free from obstruction that those who used them might do so without danger to their property. It was proved that an obstruction was left across a considerable portion of the tidal basin, directly and materially interfering with the navigation; and it was a question of fact for the jury whether the leaving that obstruction was or was not an act of negligence on the part of the defendants, looking at negligence by the light of the expressions used by the Court of Exchequer Chamber, in the passage which I have read. The evidence appears to me abundantly to warrant the verdict given by the jury on that point. The next question is, whether the knowledge of the pilot of the state of the basin disentitled the plaintiffs from recovering in the action. I subscribe to all that the (a) 3 H. & N. 164. (b) 11 4. & E. 223. 230. 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. |