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Vol. I.)

THE PHILADELPHIA AND READING RAILROAD Co. v. Long.

(No. 4.

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of them, S. A. Moore, coming out of an alley into Cotton Street, which crosses Cresson Street and the railroad track at right angles, saw the child and the locomotive at the same instant, at the crossing. To him the sight and the accident were simultaneous, so that his testimony gives us no information of the previous position of the child while the train was moving up Cresson from Gay Street to Cotton. The other witness, Benjamin Levering, saw more. He crossed Cresson at Cotton Street; saw the engine coming. Saw it when it left the depot at Gay Street. The child was then on the

upper side of the road; after crossing, he himself turned up Cresson Street, and in doing this turned his back upon the child;

“ Just as I turned round the child went on the track, and the cow-catcher struck her, the train then going over eight miles an hour.' In his cross-examination he says, when he got opposite to the store at the upper corner of Cotton Street, the child was then on the side of Mr. Long's house, and when he got over, the child was between the tracks. Thus it is very evident the testimony of this, the only witness who saw the child before the train reached Cotton Street, left it an open question of fact where the child was, and whether she was not visible to the en. gineer had he kept a constant lookout while the train was moving up Cresson Street, before it reached Cotton Street, and whether a slower rate of speed would not have enabled the engineer to discover the child, as well as to reverse his engine before it came upon her. Two of the witnesses testify the speed to have been not less than eight miles an hour, and Levering gives as a reason for his belief, that he had lived there all his lifetime, and of course was in the habit of judging of the speed. Thus it is evident that the position of the child while the train was moving up Cresson Street, the lookout of the engineer, the place of the fireman, the rate of speed, and all the circumstances, were matters entering into the question of negligence, taken into connection, also, with the allimportant fact that Manayunk is a closely built, populous town, Cresson Street a public thoroughfare, not of great width, where many persons of all ages, sexes, and conditions are constantly passing and repassing, and crossing the tracks of the railroad rightfully. It was, therefore, clearly the province of the jury to ascertain from the evidence the true position of the child while the train was moving up Cresson Street, when and how far the engineer ought to have seen the child in advance of the locomotive, and whether he was keeping a due lookout, and a properly regulated rate of speed, in traversing a populous street. It was in view of this duty of the jury, the instructions of the judge, contained in the first three assignments of error, were apposite and correct. We disagree emphatically to the position taken by the learned counsel of the railroad company that the rate of speed at the time was not material, and that seven or eight miles an hour is a rate of speed compatible with safety in passing through the streets of a populous town. While it is true that trains must be run at a high rate of speed to reach their greatest utility, populous towns and cities must be exceptions, when the speed must be moderated in view of the danger to life, limb, and property. Where the people and the trains have a common right to be, and to have a joint use of the highway, the rights of each must be regarded. These remarks dispose of the first three assignments of error.

Vol. I.)

THE PHILADELPHIA AND READING RAILROAD Co. v. Long.

(No. 4.

There can be no just complaint against that part of the charge recited in the fourth assignment. It does not contradict the answer to the defendant's fourth point. The learned judge affirmed all his points, including the fourth, stating that it is negligence and would prevent a recovery for parents to suffer an infant less than two years and two months old to wander upon a railroad track when trains are constantly passing. In that part of the charge recited in the fourth assignment, the judge said, “ That the fact that the child is found in the street affords a strong presumption of negligence on the part of the plaintiffs. You will, therefore, consider whether the mother took reasonable care of the child ; if she did not, it was negligence.” To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exist it is negligence. This is the assertion of a principle. But whether the mother did suffer the child to wander is a matter of fact, and is the subject of evidence, and this must depend upon the care she took of her child. Such care must be reasonable care dependent on the circumstances. This is a fact for the jury. If she did not exercise this care she was negligent. What more than this can be demanded of her ? When a railroad runs through a populous city, has the company a right to exact a harder measure, and are we to say, as a matter of law, that the citizens are to be imprisoned in their houses, or their children caged like birds, otherwise it is negligence? Is it negligence for the poor who congregate these crowded streets, unless, even in the summer's heat, they live shut up in the noisome vapors of their closed tenements, without a breath of healthy air ? In this the life they must lead or be adjudged to be negligent? This mother gave her child a piece of bread, to satisfy it, closed the kitchen door to keep it in, and went to the next room to scrub the oil cloth on the floor, and before her labor was finished, and in less than five minutes, the mangled body of her little one was brought in and laid before her. We have no reason to believe that her love for her child was less than that of the inore favored of her sex, having servants at their beck. Because the child managed to lift the latch and momentarily disappeared, are we to say this was negligence per se, and that she suffered her child to wander into the street ? What sort of justice is that which tells the mother agonizing over her dying child, “Your negligence caused this. You suffered your child to run into the jaws of death. We cannot perceive any fault in the railroad company. A speed of eight miles an hour along this populous thoroughfare was all right.” We can indorse no such cruel doctrine ; but we must say, as was said in Kay v. Railroad Company, the doctrine which imputes negligence to a parent in such a case is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil. 15 P. F. Smith, 276. The judgment is affirmed.

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The right of fishing in a river is subordinate to that of navigation, but this does not

excuse the master of a vessel from running into and damaging a net of a fisherman, where he could change the course of the vessel without prejudice to the reasonable prosecution of his voyage, and thus avoid the net. ERROR to the district court of Philadelphia. Opinion delivered February 24, 1874, by

AGNEW, C. J. We discover no error in the portions of the charge assigned for error. They may all be comprised in the following instruction :

I charge, as a question of law, he (the defendant) was bound to shorten his tack, if he could thereby have avoided the nets, without prejudice to the reasonable prosecution of his voyage.' This was said in view of the facts in evidence on part of the plaintiff, that the defendant was notified of the position of the net of the plaintiff ; pointed to the light which marked that position, and requested to change his course, so as not to foul it, and that this could be done conveniently. The judge had already said: “ But there is another right in the river, that of navigation, which is superior to the right of fishing, and when they interfere, that of fishing must give way to the right of navigation.” He had also said : “ Those exercising the rights of navigation will not be excused, if they are sufficiently warned, unless they make a reasonable effort to avoid them. Now, surely, it is not error to say that when the mariner is warned of his approach toward the net of the fisherman, he should change the course of his vessel, if he can do so without prejudice to the reasonable prosecution of his voyage.The entire point of the charge is contained in this qualification, and, hence, it was not doing full justice to the charge to omit the qualifying words in the assignment. What would be a reasonable prosecution of the voyage would depend on the attendant circumstances, and upon these a special instruction might have been called for. Without the qualification there would have been error, for we must agree that the mariner is not bound to shorten his tack merely because a net is stretched across his course. A vessel is entitled to take her course in the navigation of the river, and to hold it, without regard to the fisherman's net, provided the master act without wantonness or malice, and do no unnecessary damage. This is an obvious consequence of the superior right of navigation. But this, we think, was the very doctrine of the charge, and the exception contained in the qualification, in view of the facts in evidence. If the mariner, warned of the position of the net, and requested to change his tack may

do so" without prejudice to the reasonable prosecution of his voyage,” can we say he is exercising his superior right of navigation justly, and in the spirit of the maxim, Sic utere tuo ut alienum non ludos, if, in

Vol. I.)

COBB v. BENNETT.

(No. t.

different to the inferior right, he recklessly holds on his way, and fouls and injures the fisherman's net ? Certainly we cannot say this, for, in effect, it would be to say a fisherman has no rights whatever that being no right which another may disregard under all circumstances. In view of the legislation, both of Pennsylvania and New Jersey, the usages of fishing, and the decisions in our own State, there is a right of fishing in the Delaware, though subordinate to the right of navigation, which cannot be unnecessarily impeded by it. Fisheries attached to the riparian ownership are valuable, and command high rents. This subject will be found to be discussed at great length and with much research by brother Sharswood, in the case of the Tinicum Fishing Co. v. Carter, 11 P. F. Smith, 21. It, therefore, needs no further discussion here. The right of fishery is an acknowledged one, though it is entirely subordinate to that of navigation, and we intend, in this opinion, to lay down no principles which would burden commerce or restrict the navigator's rights, beyond that which his evident duty to others would justly require. Indeed, the question upon the charge comes down to this: Is it wantonness, when a mariner, warned of the net, seeing the light marking its position, and requested to avoid it, yet, indifferent to the interests of the fisherman, keeps on his course, when a reasonable pursuit of his voyage would not be prejudiced by avoiding the net? Wantonness is reckless sport, wilfully unrestrained action, running immoderately into excess. If a man will do an injury, when he may reasonably avoid doing so, without inconvenience to himself, can it be said he is blameless? Is it not worse than wantonness; is it not rather malice, where he may, without prejudice to the reasonable enjoyment of his own right, desist from an injury to another, and yet will persist in committing it? Now, unless we deny this proposition, we cannot reverse. If there were anything exceptional in the facts, or contradictory in the evidence, it was in the power of the defendant to ask specific instructions upon the precise state of the facts as appearing on either side. If, by reason of the veering of the wind to the northeast, the running of the tide with the course of the vessel, the want of men on deck at the moment, or other sufficient cause, it would have been difficult, or even unreasonably inconvenient to shorten the tack of the vessel, or change its course, the instruction might have been asked, that in such a case the master was not bound to luff or to shorten tack. We agree with the counsel of the plaintiff in error, that the interests of navigation are all-important to a port like that of Philadelphia, and are not required to give way to the minor and subordinate right of fishing. But, in absence of a call for instruction on the point so much insisted upon in the argument, we cannot say the court erred in the general instructions contained in the charge. There was evidence of malice sufficient to take the case to the jury, to whom it belonged, and not to the court, to say whether the language used — “ To hell with your net ” — was a mere superfluity of maritime civility, or was indicative of malice.

Judgment affirmed.

Vol. I.)

SEARLE 0. LAVERICK.

[No. 4.

COURT OF QUEEN'S BENCH.

[LAW REPORTS, 9 Q. B. 122.]

BAILEE FOR HIRE. LIVERY STABLE KEEPER, LIABILITY OF, FOR

CARE OF CARRIAGE OF CUSTOMER. FALL OF COACH-HOUSE.

SEARLE v. LAVERICK.

Where a livery stable keeper undertakes for reward to receive a carriage and lodge it

in a coach-house, the case comes within the second class of the fifth sort of bail. ment mentioned by Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. at pp. 917,918, viz.: a delivery to carry or otherwise manage for reward, to a private person, not exercising a public employment; and he is bound to take reasonable care. The obligation, to take reasonable care of the thing intrusted to a bailee of this class

involves in it an obligation to take reasonable care that any building in which it is deposited is in a proper state, so that the thing deposited may be reasonably safe in it ; but no warranty or obligation is to be implied by law on his part that the

building is absolutely safe. The fact that the building has been erected for the bailee on his own ground makes

no difference in his liability. The plaintiff brought his horses and two carriages to defendant, a livery stable

keeper, the carriages were placed under a shed on defendant's premises, a charge being made by defendant in respect of each. The shed had just been erected, the upper part being still in the hands of the workmen. Defendant had employed a builder to erect the shed for him, as an independent contractor, not as defendants servant, and he was a competent and proper person to be so employed. The shed was blown down by a high wind, defendant being ignorant of any defect in it, and the carriages were injured, upon which plaintiff brought an action against defendant. At the trial, the above facts having been admitted, the judge rejected evidence to prove that the fall of the shed was owing to its being unskilfully built through the negligence of the contractor and his men ; and he nonsuited the plaintiff, ruling that the defendant's liability was that of an ordinary bailee for hire, and that he was only bound to take ordinary care in the keeping of the plaintiff's car. riages, and that if he had exercised in the employment of the builder such care as an ordinary careful man would use, he was not liable for damage caused by the carelessness of the builder, of which he, defendant, had no notice : Held, that the nonsuit and ruling were right. Readhead v. Midland Ry. Co., Law Rep. 4 Q. B. 379; and Francis v. Cockrell, Law Rep. 5 Q. B. 184, 501, distinguished.

DECLARATION, that in consideration of plaintiff having delivered to defendant certain carriages to be safely kept and taken care of by defend ant for plaintiff, for a reward to defendant, defendant promised to safely keep and take care of the carriages. Breach, that defendant did not safely keep and take care of the carriages while they were in his keeping, whereby they were damaged.

Second count, that plaintiff delivered to defendant certain carriages to be kept in a fit and proper carriage house or building for that purpose, , and to be taken due care of by defendant for reward to him; that defendant promised so to keep the carriages in a fit and proper building. Breach, that defendant did not so keep the carriages, but kept them in a danger

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