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Vol. IV.)

SHERLOCK V. ALLING.

[No. 1

It was argued that by this section Congress intended the exemption claimed. And confirmation of this view was found in the fact that the owners were obliged to take a pilot, and were restricted in their choice to those licensed by the government inspectors. It was supposed that the relation between owner and pilot, as that of master and employee, was thus changed, and that with the change the responsibility of the former for the negligence of the latter ceased. The court, however, proceeded through the trial upon a different theory of the position of the defendants. It held that as owners they were responsible for the conduct of all the officers and employees of the vessels, and that it was immaterial whether the vessels were or not at the time of the collision under the exclusive charge of the pilots. The instructions to the jury at least went to that extent. They in substance declared that, if the collision occurred within the territorial jurisdiction of Indiana, and was caused, without fault of the deceased, by the carelessness or misconduct of the defendants, or any of their agents, servants, or employees in navigating and managing the steamers, or either of them, the plaintiff was entitled to recover.

In support of the exemption the counsel of the defendants called to our attention an opinion of the supreme court of Kentucky in a similar case arising upon the same collision, where such exemption was upheld. The opinion is marked by the usual ability which characterizes the judgments of that court, but, after much hesitation and doubt, we have been compelled to dissent from its conclusions. The statute appears to us to declare that the owners and masters of a steam vessel, and the vessel itself, shall be liable for all damages sustained by a passenger or his baggage from any neglect to comply with the provisions of the law, no matter where the fault may lie; and that in addition to this remedy any person injured by the negligence of the pilot or engineer may have his action directly against those officers.

The occasions upon which a pilot or engineer would be able to respond to any considerable amount would be exceptional. The statute of England, which exempts the owners of vessels and the vessels from liability for faults of pilots, pilotage there being compulsory and pilots being licensed, has not met with much commendation from the admiralty courts, and the general tendency of their adjudications has been to construe the exemption with great strictness. This course of decision is very fully stated in the exposition of the law made by Mr. Justice Swayne in the case of The China, 7 Wallace, where this court declined to hold that compulsory pilotage relieved the vessel from liability. In the case of The Halley, Law Reports, 2 Adm. & Eccl. 15, decided as recently as 1867, Sir Robert Phillimore strongly questioned the policy of the statute, and said that it appeared to him difficult to reconcile the claims of natural justice with the law, which exempted the owner who had a licensed pilot on board from liability for the injuries done by the bad navigation of his vessel to the property of an innocent owner, and observed that no one acquainted with the workings of the law could be ignorant that it was fruitful in injustice. The doctrine that the owners are responsible for the acts of their agents and employees ought not to be discarded, because the selection of a pilot by the owner is limited to those who by the state have been found by examination to possess the requisite knowledge of the Vol. IV.]

SHERLOCK 0. ALLING.

[No. 1.

difficulties of local navigation, and the requisite skill to conduct a vessel through them. “ As a general rule,” says Mr. Justice Grier, in the case of The Creole, Dec. Joint Com. 241, “masters of vessels are not expected to be and cannot be acquainted with the rocks and shoals on every coast” (and, we may add, with the currents and shoals of every river), “nor able to conduct a vessel safely into every port. Nor can the absent owners, or their agent the master, be supposed capable of judging of the capacity of persons offering to serve as pilots. They need a servant, but are not in a situation to test or judge of his qualifications, and have not, therefore, the information necessary to choice. The pilot laws kindly interfere, and do that for the owners which they could not do for themselves.” And the learned justice observes that in such cases, where a pilot is required to be taken from those licensed, the relation of master and servant is not changed; that the pilot continues the servant of the owners, acting in their employ and receiving wages for services rendered to them, and that the fact that he is selected for them by persons more capable of judging of his qualifications, cannot alter the relation.

And in the case of The Halley, Sir Robert Phillimore upon this subject says: “I do not quite understand why, because the state insists, on the one hand, upon all persons who exercise the office of pilot, within certain districts, being duly educated for the purpose, and having a certificate of their fitness, and insists, on the other hand, that the master shall, within these districts, take one of these persons on board to superintend the steering of the vessel, the usual relation of owner and servant is to be entirely at an end; and still less do I see why the sufferer is to be deprived of all practical redress for injuries inflicted upon him by the ship which such a pilot navigates."

By the common law the owners are responsible for the damages committed by their vessel, without any reference to the particular agent by whose negligence the injury was committed. By the maritime law the vessel, as well as the owners, is liable to the party injured for damages caused by its torts. By that law the vessel is deemed to be an offending thing, and may be prosecuted without any reference to the adjustment of responsibility between the owners and employees for the negligence which resulted in the injury. Any departure from this liability of the owners or of the vessel, except as the liability of the former may be released by a surrender of the vessel, has been found in practice to work great injustice. The statute ought to be very clear before we should conclude that any such departure was intended by Congress. The section we have cited would not justify such a conclusion. Its language readily admits of the construction we have given, and that construction is in harmony with the purpose of the act.

We are of opinion that the judgment of the supreme court of Indiana was correct, and it is therefore affirmed.

Vol. IV.)

Wilder v. MAINE CENTRAL RAILROAD COMPANY.

[No. 1.

SUPREME COURT OF MAINE.

(To appear in 65 Me.)

RAILROAD. — NEGLIGENCE. — FENCING TRACK, ETC.

WILDER v. MAINE CENTRAL RAILROAD COMPANY.

The statute requiring railroad corporations to inclose the land taken for their road with

fences is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations, whether chartered before or after its passage. A parol agreement between a railroad company and an adjoining owner, for the removal

and discontinuance of a fence on the line of the railroad, does not run with the land,

and cannot therefore bind his grantee. Where a horse escaped from his owner's land on to an adjoining railroad and was killed

by the railroad company's locomotive; held, that the mere fact of his turning his horse upon his land where there was no fence between it and the railroad, when it was the legal duty of the railroad company to build it, was not proof of contributive negligence on his part.

ON EXCEPTIONS AND MOTION. Case for killing the plaintiff's horse at Hallowell, in June, 1871, by running upon him with an engine.

At the trial, March term, 1874, the verdict was for the plaintiff, with damages assessed at $1,000. The defendants moved to have the verdict set aside as against law and evidence, and filed exceptions.

The plaintiff was a third owner in common of the oil-cloth factory, and the lot connected therewith which extended on both sides of the railroad. The plaintiff's horse escaped from this lot, then unfenced, on to the track at the time of the killing.

There was evidence tending to show that the defendant company originally fenced their track from the oil-cloth lot, and that the fence was removed many years previously at the request of Stickney, a member of the firm of Stickney & Page, owner of the locus. The firm afterwards took in Towle as a partner; Stickney died, and the plaintiff purchased his interest in the real estate and mills which were all included in the partnership business.

The defendants contended that they were not bound to fence their road under the general statutes of the state, because their charter and the location of their road were prior to the statute; that they were not bound to fence their road through the plaintiff's lot, because the same was not inclosed or improved land within the meaning of the statute, and because the owners and occupants had agreed with the defendant that they should not fence the same; and that they were not liable because the negligence of the plaintiff caused or contributed to the loss of his horse ; and they excepted to such parts of the charge as were adverse to these positions.

The presiding justice, among other things, instructed the jury as follows:

" The first point made then, in regard to this, is, that the railroad is under no circumstances bound to make a fence, because it is said that the charter of this road was granted previous to the law passed by the legislature, requiring railroads to build fences. I reserve this question for fut[No. 1.

Vol. IV.1

WILDER v. MAINE CENTRAL RAILROAD COMPANY.

ure consideration, for the full court, where it can be more carefully examined than it can be here, and hold that this road would be bound by the statute which has been referred to, as having been first passed in 1842. Then under that statute this road and others in the state are bound to build fences along the line of their road on each side, provided they pass through inclosed or improved lands.

"I understand land to be improved, when it is occupied for the purpose of obtaining a profit from the produce which may grow upon it, pasturing, and mowing, or tillage, or anything of that kind. I understand that to be the sense in which the word is used in the law which has been read in your hearing. If it is not improved land, in the sense to which I have called your attention, the road would not be under obligation to build a fence. If it was improved land at that time, in the sense which I have defined to you, then the road would be under obligation, so far as that is concerned.

“I instruct you for the purpose of this trial that the agreement, whatever it was, made with Stickney as a member of that firm, would be binding upon the firm. He had a right, so far as he himself was concerned and so far as the firm then existing was concerned, to release this railroad company from building a fence. He had no such right, to be sure, so far as the public was concerned; and if any passenger had been injured or any property of any person being carried over the road had been injured or destroyed, for the reason that any animal escaped from that and got upon the road, the railroad still might have been "liable notwithstanding the agreement.

“ The agreement, then, goes no further than to those persons who are parties to it, and who are bound by it; and the party owning the land may assume the obligation, if he chooses, to keep up the fence; and if he does, so far, and so long as that obligation continued, he could have no claim himself upon the railroad for any of his animals that might escape through that fence, or for the want of a fence upon the track.

" So I hold for the purpose of this trial, that a member of the partnership business, in relation to that which pertained to the partnership, would have authority to bind the partnership. If they were then occupying this land, and used it for partnership purposes in carrying on their partnership business, one of the members of the firm would have a legal right, so far as that firm was concerned, to release the company from building the fence. That agreement would continue in force and be binding upon that partnership. It would not be binding, as has been held in our court, upon any successor or any grantees. Now when a partnership is existing, and one partner goes out and another comes in, that is a regular dissolution of that partnership. And a new one being formed, they would be the successors of the others, and, therefore, I instruct you in this case that whatever that contract might have been between Stickney (as representing that partnership) and the railroad company, that would not be binding upon his successors. When the partnership became changed the contract would be no longer in force.

“I instruct you for the purpose of this trial that the mere fact of there being no fence is not proof that he was negligent in turning his horse out there. That is to say, he had a right to use his own land in the ordinary

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Vol. IV.)

WILDER v. MAINE CENTRAL RAILROAD COMPANY.

[No. 1.

way, and the railroad company could not screen themselves simply upon the ground that they had neglected to perform the duty which was incumbent upon them. But this principle of law is subject of course to qualifications. In one instance it may not have been a negligent act, and in another instance it may have been a negligent act. Here is a question of fact for the jury to settle. You will take into question the nature of the road, the manner in which it was built, the dump which extended from near the crossing to the bridge, the nature and character of the horse, and all the circumstances bearing upon that, and decide for yourselves whether the plaintiff was guilty of negligence in turning his horse out there under the circumstances in which he did. It is not to be taken as a matter of law that he was negligent, neither are you to consider the simple fact that he turned his horse in, knowing that there was no fence; but you are to take all these circumstances into consideration ; you take that of course, so far as it is a fact, that there was no fence there (because if there had been a fence this question would not have arisen), but not as bearing upon the question of negligence; but taking all these circumstances into consideration – was it an act of negligence on his part to turn his horse in ?

“ If the company was under obligation to build the fence at that time and maintain it, and the plaintiff was not negligent in turning his horse in at that time, the company would be liable. Otherwise, upon this branch of the case, they would not be.”

J. W. Bradbury, Jr., for the defendants. The defendants were not required to fence the locus in quo.

I. Their charter, granted in 1836, specially exempts the corporation from the provisions of the Act of March 17, 1831. It is not therefore subject to the future action of the legislature, except in the manner provided in the charter itself; and that does not authorize any action in regard to fencing.

The act requiring railroads to fence was passed in 1842, and the act subjecting them to damages, caused by the neglect, in 1853.

These acts cannot affect the existing relations between this corporation and the land-owner.

As the terms of these relations were established by the charter, they are not to be interfered with by any subsequent legislation.

The legislature, by its own act, had surrendered the power to interfere, and had stipulated that it would not.

It was under this condition that the relations between the land-owner and the corporation had become fixed, and the damages for taking the land appraised and paid.

It was not competent, therefore, for a subsequent legislature to change the conditions or add to the burdens of either party. Any act attempting it would be clearly retroactive and unconstitutional. And the instructions given on this point were therefore erroneous. Baxter v. Boston f Worcester R. R. 102 Mass. 383.

II. Again, under the Act of 1842, the relations between the parties were not changed. That act, if constitutional, would only subject the defendants to the penalty for neglect to fence, but it would not authorize the plaintiff to recover in this action, if he could not, independent of its passage.

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