
    Dennis G. Barber, Resp’t, v. Abendroth Brothers, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Wiiaiif—Duty of owner of, to person unloading at—When liable FOR INJURY CAUSED BY DEFECT IN BOTTOM—CONTRIBUTORY NEGLIGENCE.
    The owners of a dock are responsible for damages suffered by a vessel lawfully using the dock, caused by a defect in the bottom, known to the owners of the dock, and not known to the master of the vessel. And where defendant owning a dock opposite its foundry and knowing of the ' dangerous character of the bottom near it, contracted for a cargo of sand, to be delivered at its dock, and the boat arrived at 12 o'clock a night, and the plaintiff inquired of the watchman on duly where he should land, who said lie didn’t know, but pointed out the place where the last load had been landed, and plaintiff moored his boat at the place designated, and the tide falling, the boat broke in the middle, the defendant was liable, not on ac.-ount of tlxo directions given by the watchman, as it was not part of his duty to give them, but because plaintiff took such precautions as tended to absolve him from the charge of negligence, and defendant was negligent in not making provision to warn the' vessel coming in by the night tide.
    Appeal from a judgment of the general term, supreme court, first department.
    
      D. B. Ogden, for appl’ts; J. A. Hyland, for resp’ts.
    
      
      Afflrming 34 Hun, 628 mem.
      
    
   Rapallo, J.

The plaintiff was lawfully using the defendant’s dock at the time of the injury complained of. The defendant is a corporation, and owned the dock, which was opposite its foundry, and which was about 300 feet long. It had contracted for a cargo of sand, to be shipped to it and to be delivered at the dock in question.

The sand was shipped on the canal boat George A. Bennett, owned by the plaintiff, and consigned to the defendant, deliverable alongside of its dock at Tort Chester, New York.

The boat, with its cargo, arrived at the mouth of the Byrani river on the 25th of August, 13.81, at between eight and nine o’clock p. k., and was then attached to a tug. The tide being then low, the tug anchored and waited till the tide rosa enough to take the beat to Pert Chester. She arrived there at about twelve o’clock that night.

There was a watchman on the dock, and the plaintiff asked him where lie should moor his boat, and he said he did not know. The plaintiff then asked him where the last load had been landed, and ho pointed out a place, and the plaintiff then moored at the place designated, throwing his lines to the watchman, who took them and made them fast.

When the tide fell the boat rested on the bottom, which was hare at both ends of the boat; but there was a depression in the center, which caused the boat to settle about a foot in the center and thus injured her. The bottom was hard sand.

At the close of the testimony, the judge, at the request of the defendant, charged the jury that the plaintiff could not recover unless the jury believed that the defendant had notice that the bottom of the river at the point in question was unsafe, and was guilty of negligence in not warning the plaintiff, and the plaintiff was not guilty on his pari of any negligence which contributed to the accident.

This charge was in accordance with adjudged cases, and the converse of the rule laid down is sustained in the same manner. The jury having found for the plaintiff, the verdict must be assumed to have been based upon the facts supposed in the charge.

In Sawyer v. Oakman (1 Low., 134), the rule was laid down by the district court of the United States that the owners of a dock are responsible for damages suffered by a vessel lawfully using the dock, caused by a defect in the bottom, known to the owners of the dock and not known to the master of the vessel. This decision was affirmed in the circuit court of the United States by Woodruff, J., in *7 Blatchf. 290.

The same rule was applied in Carleton v. Franconia Iron and S. Co. (99 Mass., 21(3), where the owner of a private wharf procured a vessel to bring a cargo to it to he there discharged, and suffered her to be placed at high water at a place apparently safe, but in fact unsafe, there being a sunken rock at the adjoining wharf, of which the defendant had knowledge. The plaintiff might have moored safely at the defendant’s wharf, but did not know of the rock. As an illustration, the court, in the case cited, instanced an unsafe entrance to a man’s house, whereby a carrier coming there at night should sustain damage. See, also, Leary v. Woodruff, 4 Hun, 99; affirmed 76 N. Y., 617.

In the present case the defendant had authorized the cargo of sand to be sent to it, to be delivered at the wharf in question, and knew that it was coming, although it did not know at what precise time. It was bound to know, however, that it could only be delivered at high tide, which would, on the day in question, be either about noon or about midnight, the bottom being bare at low tide. The jury must be deemed to have found that the defendant knew the dangerous condition of the bottom, was negligent in not making provision to warn a vessel coming in by the night tide, especially as it had a watchman there who might easily have been instructed. Both of these questions were submitted to the jury at the defendants’ request, and found adversely to them. We do not think that the directions given by the watchman made the defendant liable—

First. Because it was not part of his duty to give them, he being there only to watch the building, and guard against fire; and,

Secondly. Because he did not assume to have authority to give directions, as he said he did not know where the plaintiff should moor.

But the inquiry made by the plaintiff showed that he took such precautions as the circumstances afforded, and that, in making fast at the place where he was told the last cargo had been landed, he exercised prudence which tended to absolve him from the charge of negligence. There was evidence tending to show that the place selected by the plaintiff was not the proper place, but we think that, taking the whole evidence together, it was sufficient to sustain the verdict.

The judgment should be affirmed.

All concur.  