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. 1862. IN THE EXCHEQUER CHAMBER. THOMPSON and others against The NORTH For head note, see ante, p. 106. THE defendants having appealed from the above decision, the case was argued by Sir F. Kelly, for the appellants.-It is not proposed to question the rule laid down in Parnaby v. The Lancaster Canal Company, in error (a), and Clayards v. Dethwick (b). There is, however, a distinction between the present case and those cases, as well as every other case of negligence which has come before the Courts. In Clayards v. Dethwick the leaving the trench open without putting up a fence, and the throwing a quantity of rubbish on the adjacent ground, were wilful acts which rendered the defendants liable. In Parnaby v. The Lancaster Canal Company, in error (a), and Gibbs v. The Trustees of the Liverpool Docks (c), there was an obstruction which the Company were bound to remove. But in this case, the defendants having obtained an Act of Parliament for the construction of docks, and no time being fixed at which they were bound to open them, they simply opened them before they were in a condition to receive vessels of the largest size. Assuming that, from the existence of the bank, there (b) 12 Q. B. 439. (a) 11 A. & E. 223. 230. (c) 3 H. & N. 164. Saturday, 1862. THOMPSON V. NORTH EASTERN Railway Company. was some danger to such vessels coming in or going out of the docks, this is not the case of a dock in use by the public, in which an impediment arose, which the Company were bound to remove. The existence of this bank was lawful, and was necessary to keep out the water of the river Tyne, while the basin was being excavated. There was no failure on the part of the defendants to do any act which the law imposed on them. It was not incumbent on them to keep the docks closed until the basin was finally completed, provided they omitted nothing which they were bound to do, with reference to vessels of a large size passing through the basin for the purpose of entering or leaving the dock. Further, notice of the state of the basin, and of the channel through it, to the pilot on board the ship, was notice to the owners of the ship. The presence of one of the owners on board is immaterial. No inference can be drawn from the printed bills that the defendants would be responsible for the safety of all vessels, whatever might be their tonnage. Bovill, for the plaintiffs, was not called upon. ERLE C. J. We are all of opinion that the judgment of the Court below ought to be affirmed. The ship of the plaintiffs was damaged in coming out of the defendants' docks, which had been opened for public use, and declared by them to be fit for vessels of the largest size. It must be taken that the ship was damaged by reason of the state of the channel through which it had to pass, and not by any fault of the plaintiffs. The jury found that the defendants were guilty of negligence in opening the dock and basin XXV. VICTORIA. before the channel was in a fit state; and the meaning of the particular negligence attributed to the defendants is well expressed in the judgment of Hill J., in the Court below; when he said that their duty 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" (a). That was the meaning of the second question put to the jury in this case, "Was there negligence in the defendants in suffering the basin to remain in an imperfect condition, if, by reasonable diligence, they might have perfected it by the time of the accident?" The jury have found that there was. We were pressed with a distinction said to exist between this case and Gibbs v. The Trustees of the Liverpool Dock Company (b), and Clayards v. Dethwick (c). But Gibbs v. The Trustees of the Liverpool Dock Company (b) and Parnaby v. The Lancaster Canal Company, in error (d), are exactly parallel to this case; and in our judgment it does not matter whether the obstruction in the channel had grown up after the dock and basin were opened, or whether the dock and basin were opened before the channel was well cleared. Strangers cannot be supposed to know the state of the dock, and the Company who open their dock are bound to take reasonable care to make it safe for navigation by those who use reasonable care in navigating it. A great deal was said about the knowledge of the pilot in charge of the vessel, as to the state of the channel. The answer was given in the Court below. No reliance was placed, by the defendants, on the knowledge of the pilot; because they contended that the state (a) Ante, p. 116. (b) 3 H. & N. 164. (d) 11 A. & E. 223. 230. 1862. THOMPSON V. NORTH EASTERN Railway Company. 1862. THOMPSON V. NORTH EASTERN Railway Company. of the basin was not such as to prevent a man of ordidary prudence from attempting to take the vessel out. Moreover, this argument cannot avail, because the jury found that there was no mismanagement on his part when the vessel received damage. Notwithstanding the argument of Sir Fitzroy Kelly I think that the judgment ought to be affirmed, for the reasons assigned in the Court below. POLLOCK C. B., WILLIAMS J., CHANNELL B. and KEATING J. Concurred. Judgment affirmed. [1860.] Tuesday, May 29th. Railway and 17 & 18 Vict. Carriage of animals. Extra charge. THOMAS HAYDON HARRISON against The LONDON, A passenger by railway from L. to W., took with him two horses and a retriever dog; the horses were put into a horse box, and a servant of the defendants proposed that the dog should be placed in the horse-box, to which the plaintiff assented. The dog was fastened in the horse-box by means of a leather collar round its neck, and a strap thereto, which passed through a ring fixed to the side of the horse-box; the collar and strap were furnished by the plaintiff, and were his property. The plaintiff's agent signed a ticket, subject to the following conditions: "The Company will not be liable in any case for loss or damage to any horse or other animal above the value of 407., or any dog above the value of 5., unless a declaration of its value, signed by the owner or his agent at the time of booking the same, has been given to them, and by such declaration the owner shall be bound, the Company not being in any event liable to any greater amount than the value so declared. The Company will in no case be liable for injury to any horse or other animal or dog, of whatever value, when such injury arises wholly or partially from fear or restiveness. If the declared value of any horse or other animal exceed 407., or any dog 57., the price of conveyance will, in addition to the regular fare, be after the rate of 23 per cent., or 6d. in the pound, upon the declared value above 407. [or 57], whatever may be the amount of such value, and for whatever distance the horse or other animal is to be carried." The plaintiff made no declaration of the value of the dog, and paid 3s. for the carriage of it. On the arrival of the train at W. a window in the horse-box was found open, through which the dog had escaped, and was lost. The Court having power to draw inferences of fact, 1. Held by this Court, and affirmed by the Exchequer Chamber, that the loss of the dog was not occasioned by neglect or default of the plaintiff, or of the defendants. 2. Held, per Cockburn C. J. and Blackburn J., that a dog is one of |