
    Crawford v. Allegheny City.
    In a case, involving the correctness of the rulings of the court on the question of the degree of care due, by the owner of a public wharf, to a navigator of a river, And verdict and judgment were in favor of the defendant, and it is denied by the defendant in error that the plaintiff was a navigator, and the evidence is not printed in the paper boohs, the supreme court will not reverse, although error may have been committed in the court below.
    _ It seems that, where a navigator uses a river wharf owned by a municipality, for the mooring of his rafts and timber, paying toll or wharfage therefor, the measure of care due to a navigator is utmost care, and it is error on the part of the court to modify a request so to instruct the jury, by saying that utmost care means reasonable and proper care in view of the safety of the rafts and other craft, although it was stated in the general charge that the appliances must be ordinarily sufficient in such waters as were bound to be anticipated in high floods from year to year, but not in extraordinary floods amounting to an act of God.
    
      It seems, also, that the owner of a public wharf does not owe as great a degree of care to a lessor of a portion of the wharf for purposes of storage in connection with the business of manufacturing, as to navigators.
    Oct. 22, 1888.
    Error, No. 65, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review a judgment on a verdict for the defendant in an action on the case, at June T. 1887, No. 162. Clark, J., absent.
    The cause of action, as stated in the paper book of plaintiff in error, was substantially as follows:
    This was an action brought by J. A. Crawford, a manufacturer of lumber on the Allegheny river, against the City of Allegheny, as the owner of a public wharf on the banks of the said river, to recover the value of timber and logs swept away by a flood in Feb., 1884. The timber and logs were stored above his mill and along the shore below Herr’s island bridge until they could be sawed. The city charged rent or tolls to the plaintiff and other persons for the use of the wharf. The plaintiff alleged that the city had not provided sufficient appliances for the safe mooring of craft at the wharf, in such emergencies as arose at the time in question; that it had allowed the wharf to be occupied by the Pittsburgh & Western Railroad ■Co., some years before; that the company had erected a trestle thereon above the saw-mill and immediately opposite to where the main body of the plaintiff’s timber lay; that, while occupying the wharf, the company had removed a number of trees and posts which Rad formerly been» available for tying to, and that the loss was occasioned by the raising of the top of the trestle, thus allowing the bents of the trestle to which the lumber was tied to go out with the fleet.
    The plaintiff in error did not print the evidence in his paper book. The defendant in error, protesting against the omission of the evidence, made the following counter statement:
    In February, 1881, there occurred a sudden and extraordinary rise in the Allegheny and Monongahela rivers. The people along the shores, accustomed to annual inundations, were taken by surprise at the rapidity of the current and the extraordinary volume of water. Nothing like it had been seen for more than fifty years,, and that flood was not as high as this. Fences, dwellings, barns, and bridges, untouched and unharmed by all previous overflows, were swept away by the fury of the flood. Railroad travel was stopped, and streets in the heart of the city were traversed in boats. Thousands of people were driven to the upper stories of their dwellings, and furnished with the necessaries of life through the second-story windows. Yast masses of debris gorged above a bridge, which had withstood all previous floods, and, lifting it from its supports, hurled it against the plaintiff’s rafts, breaking the ropes which secured them and sweeping them away.
    The plaintiff’s claim was that the city had not provided sufficient hitching-posts. The evidence shows that the flood was a disaster— an act of God. The city had provided two posts, which had sufficed for all previous floods, and still remain unmoved. To neither of these did the plaintiff attach his rafts, but saved rope by tying to telegraph-posts and bents of the railroad track. Two of his ropes were broken, and to this, and the extraordinary character of the flood, is his loss to be attributed.
    The plaintiff in error was not a navigator. He was the proprietor of an extensive saw and planing mill on the bank of the river, and was using the river and wharf, not for the ordinary purposes of navigation and safe harbor, but as a receptacle and storing place for large rafts of timber which he had bought, and was keeping in the water until it suited his convenience to remove them.
    It appears that, upon the trial, the plaintiff asked the court to charge, inter alia:
    “ 1. The defendant City of Allegheny, being in possession of the wharf, at which plaintiff’s rafts and timber were moored, and receiving tolls or wharfage for its use, was held to the utmost care of said wharf, and it was a violation of defendant’s duty to the public to neglect to provide proper posts or means of fastening for the mooring of rafts and timber at said wharf.” Ans. “Affirmed, with the qualification that ‘utmost’ must be interpreted tornean only ‘ reasonable and proper care,’ in view of the safety of the rafts and other craft.” [1.]
    “ 2. If the City of Allegheny permitted a railroad company or corporation to locate a railroad track on and along said wharf, and thereby interfere with the safe mooring and securing of rafts, timber, etc, at said wharf, that then the said city is responsible to all owners of rafts and timber sustaining loss or damage by reason of such use of the wharf.” Ans. “ Refused. The fact that the city alloweci the railroad to locate its track between high and low water mark will not alone make it liable for timber carried away by the waters. All the city is bound to do is to supply good and sufficient hitching posts or places to which parties may securely attach their boats, lumber, etc., anticipating, of course, ordinary floods. If there are sufficient hitching-places there for all ordinary and reasonable purposes, such as the railroad trestles or bents, which are ordinarily used by parties using the wharf, without any dissent on the part of the railroad, that is all that is required.” [2.]
    “4. The said City of Allegheny, under the law, is charged with the duty of providing safe, secure, and sufficient posts and fastenings to moor and secure safely boats, rafts, and other watercraft moored at the wharf within the territorial limits of said city, and, in so doing, the said city is bound to provide for and anticipate extraordinary high raises of the water of said river.” Ans. “ Refused. The city is not bound to anticipate anything more than the ordinary freshets or high water likely to occur from year to year, based upon its experience. It was not bound to anticipate such a flood as that of 1884 is shown by the evidence to have been.” ■ [3.]
    The court charged the jury, inter alia:
    [“ Now, in this case, you find in the first place that this was an. extraordinary flood. The evidence all shows that, and we all know as a matter of history that there has not been such a flood since 1832, half a century. There have been two or three high floods before this one, but there is no evidence, as I remember, that even in those floods any boat went away, but that is immaterial. It does seem that, previous to the building of the railroad, there were some trees to which boats or rafts could be attached, and that they were taken away. Now, while it is the duty of the city to supply the use of a wharf with the proper means to tie his fleets, if there are means that he can use and is in the habit of using, the city is not bound to put any other additional supports or posts; so that, in this case, if you believe these rafts were moored to the railroad ties or trestles, as they seem to have been, and that they were ordinarily sufficient to hold fleets, in such waters as they were bound to anticipate, high floods, but not such a flood as this, and that if the flood had not been as extensive as it was this fleet would not have been carried away, you have no right to find a verdict against the city, because, in that case, these parties had sufficient appliances, and the extraordinary flood itself, for which the city is not responsible, was necessarily the cause of the loss.] [4.] [Not to be misunderstood, the city was bound to see that the plaintiff had a sufficient place to tie, to meet all ordinary emergencies, and, including in that the high floods arising from year to year, that were to be anticipated, but if this loss occurred by reason of this extraordinary flood, superinduced probably by the gorge that formed above the bridge, which caused the bridge eventually to fall down, and, to a certain extent, obstruct the current and throw it as it naturally would probably, and as the evidence indicates it would, toward the Allegheny shore, and that, immediately or a short time after, whether instantly, or in five minutes, or half an hour, it worked this fleet loose, when, if that emergency had not arisen, the fleet would not have gone away, would have stayed there and the railroad would not have pulled out of place, then the plaintiffs cannot recover in this action. It must be attributed to the extraordinary emergencies, or what we call, in the language of the law, the Act of God.] [5.] ... [If you think that the hitching-posts, or the bents of the railroad that the plaintiff attached to, were insufficient to protect his fleets under ordinary circumstances, and with the ordinary high waters, it was the duty of the city to put in more posts. If, however, the evidence satisfies you that they were reasonably and ordinarily safe with such waters as they were bound to anticipate, the city has been in no default and the plaintiff cannot recover if there were not sufficient hitchings. If you think that there ought to have been posts there, then the next question comes up, if the posts had been there, would the fleet have been saved ? If posts, such as would have been ordinarily necessary and suitable to protect the fleets with ordinary water, had been there, would the fleet have gone away ? That, of course, is surmised, to a great extent, and yet it is a matter the jury must pass on in that view of the case.”] [6.]
    
      The assignments of error specified, 1-3, the answers to the plaintiff’s points, quoting them; and, 4-6, the portions of the charge in brackets, quoting them.
    
      Jos. A. McDonald, for plaintiff in error.
    The measure of care required of the city was incorrectly expressed by the terms “ reasonable and proper care.” Willey v. Allegheny, 118 Pa. 490.
    The city being negligent in not providing sufficient hitching-posts, it couíd not be exonerated by showing the existence of such circumstances as are legally termed an act of God. No wrong-doer can apportion or qualify his own wrong. Davies v. Garrett, 6 Bing. 716; Hart v. Allen, 2 Watts, 114; Tuberville v. Stamp, Skin. 681; Lehigh Bridge Co. v. Lehigh Navigation Co., 4 Rawle, 9; Nugent v. Smith, cited in Wharton on Negligence, note 2, § 553. See also § 559. ,
    
      George Elphinstone, city solicitor, for defendant in error.
    The answer of the court below to the defendant’s first point, when not dissected from the immediate and vital union with the main charge, could not mislead the jury. “ In great danger, great care is the ordinary care of prudent men.” Morrison v. Davis, 20 Pa. 171.
    The duty of the city was to keep the wharf in a safe condition. Allegheny City v. Campbell, 107 Pa. 530; Pittsburgh v. Grier, 22 Pa. 54.
    
      “ There is no liability for extraordinary floods.” B. & O. R. R. Co. v. Sulphur Springs Co., 96 Pa. 65.
    
      Jan. 7, 1889.
   Williams, J.,

We have examined the paper books in this case with care, but we cannot find in them the facts necessary to an intelligent determination of the questions raised by the assignments of error. The action is brought against the City as the owner of a public wharf on the banks of the Allegheny river, to recover the value of timber and logs swept away by the flood which occurred in February, 1884. No part of the evidence has been laid before us. In the absence of that, we have turned to the history of the case in the plaintiff’s paper book for information. Here we find it stated that the plaintiff was a manufacturer of lumber, with a saw-mill, in the City of Allegheny; that the timber and logs, for which he seeks to recover, were stored above his mill and along the shore below Herr’s Island bridge until they could be sawed; and that the City charged rent or tolls to the plaintiff and other persons for use of the wharf.

Looking at the counter statement, we find that the City denies that the plaintiff was a navigator of the river, asserts that he was a manufacturer of lumber, and was using the space occupied by him below the bridge as a safe and convenient place of storage for the logs that he purchased from time to time for the purpose of stocking his mill; and- that the logs were to remain there till they could be dropped down to the mill for sawing. It will thus be seen that the right of the plaintiff to the benefit of the measure of care due to navigators of the river is not only put in issue, but, upon his own statement of facts, is rendered doubtful. In the absence of the evidence, we have no means of settling this preliminary question. It is not alleged that any part of the timber was brought down the river by him to the wharf where it was stored, but it is asserted by the City that he had collected the timber and logs at this point, as he purchased them from others, that he might have his stock together at a point convenient to his mill. How long it had been there, is left to conjecture; but, as this was an ice flood in February, it is reasonable to sujipose that the timber came down on the fall floods of the previous year and had wintered in the position from which it was carried away. This is not the ordinary use of a wharf by navigators; it would be important to know, therefore, under what arrangement a portion of a public wharf was converted into a stock-yard for a saw-mill, and whether the plaintiff was paying rent for a part of the shore that was surrendered into his possession or paying wharfage for each timber-raft owned by him. The evidence should furnish the information necessary to settle these and similar questions, but, as we have not got it before us, we cannot settle them. If the right of the plaintiff as a navigator was not denied, we might safely turn our attention to the question raised upon the instructions of the learned judge as to the measure of care incumbent on the owner of a public wharf, but it is denied.

If the plaintiff was in a position to complain, we should have no doubt that the court was in error on this subject. The true rule is laid down in City of Allegheny v. Campbell, 107 Pa. 530; same v. Willey, 118 Pa. 490

But if Ms relation to the owner of the wharf was that of a lessee of a portion of it for continued use for purposes of storage, in connection with his business as a manufacturer of lumber, we are not prepared to say that he has any right to complain.

Without the evidence, therefore, we have no means of determining whether the rule laid down by the court, in answering the plaintiff’s points, was right or wrong in its application to the facts of this case, and, for that reason, the judgment is affirmed.

W. W. M.  