
    FOSTER vs. HOLLY.
    [ACTION TO RECOVER DAMAGES FOR LOSS OF SLAVE.]
    1! What is care or negligence on part of stationary vessel. — Although it.' might be affirmed, as a legal proposition, ‘ that if a skiff was fastened in a safe and secure place unless rendered, insecure and unsafe hy the? R? negligence of a passing vessel, she was not in an improper place, and was guilty of no neglect by being at such place’; yet it certainly would be in an improper place, if fastened in-a-manner which rendered it difficult to he removed, in the cliannel of a river along which-vessels wove frequently passing-.
    2. Same, by vessel entering harbor. — A vessel, enteriiig-a harbor, is bound’ to exercise ordinary oaro to prevent accidents; which is a question of fact, to he determined hy the jury from the character of the harbor, tlio number of vessels accustomed to frequent it, the time of the day or night when tlio vessel enters, and the other circumstances of the particular caso; and a-charge to the jury, instructing- them that such-vessel “ is bound to keep the most vigilant watch,” is an invasion of their xirovince.
    3: Inability for damages between colliding vessels. — To preclude a recovery of damages for injuries caused by a collision between two vessels, on the common-law doctrino which denies a recovery to either party whore both are at fault, the plaintiff’s fault must, have occurred at the time of the accident, and contributed xiroximately to it; hut, if the consequences of the defendant’s nogligonoe, which caused the injury, might havo been avoided by the exercise ofi-ordinary eare on the x>art of the plaintiff, his failure to exercise that degree of care xwecludes him from any redress.
    4. Same. — Although the act of -fastening a sld'ff’in the channel of a navigable river, along which vessels are frequently passing, in such a man- ■ ner that it cannot ho conveniently aaid expeditiously removed, is'an act of nogligonoe od tlio part of the owner, or perspn having- change of the skiff; yet it cannot he said to contribute proximately to- a col- • lisiou with a passing vessel, caused hy tlio negligence of.the personsia charge of tho vessel, and, consequently, does not xireeludo ,a.vr$s covery against tlie owners of tlie vessel for damages resulting from tlie collision.
    Appeal from the City Court of Mobile.
    Tried before the Hon. Alex. McKinstry.
    The complaint in this case was in the following words .t
    
    
      “W. D. F. Holly 1 The plaintiff claims of the defendías. ! ants fifteen hundred dollars, for that David Eoster, and f whereas, heretofore, to-wit, on the William Foster. J 23d day of October, 1859, a certain 'schooner, called Clotilda, of which one Wright is and was master, and which is and was at the time the property of said defendants, was sailing up the bay of Mobile, between Pilot’s island and the city of Mobile, while a skiff, or small boat, in which was a slave named Alfred, the property of plaintiff, of the value of fifteen hundred dollars, was lying still on the waters of the bay, tied to a sawyer, or log, therein situated; and the master and crew of said schooner navigated and managed lier so carelessly, and with such gross negligence, that she ran afoul of the said skiff, causing said skiff to be upset and submerged; whereby said slave was drowned, deprived of life, and wholly lost to plaintiff.”
    The cause was tried on issue joined on the plea of not guilty. “ On the trial,” as the bill of exceptions states, “ the evidence tended to show that, on the morning of the 23d October, 1859, which was Sunday, the negro Alfred, who belonged to the plaintiff, got into a skiff', with a white man, to whom the skiff belonged, and went out in front of the city to fish ; that the skiff was fastened, by a chain, to a snag in the channel of the river, where boats and vessels continually pass and'repass ; that the skiff was nearer the eastern than the western shore, two-thirds of the distance being on the western side; that said snag had been in that part of the river for several years, but had been removed about a month or more prior to that time, and had drifted about fifty feet south of its former position ; that the chain, by which the ■•skiff was fastened to the snag, was from twelve to fifteen feet long, and the skiff had floated, with the tide, some 'twelve feet below the snag.that the schooner Glolilcla,' which was owned by the defendants, was coming up the river, against"Che tide, between ten and twelve o’clock in-the morning of that'day; that said'schooner, when first-seen-, was distant from the skiff about a quarter of’ a mile, and was in tbe channel of the river commonly used by all vessels, ascending or descending; that the wind at the time was north-east ; that a little while before the schooner-' reached the skiff, and when -distant from it between one hundred and fifty and two hundred yards, 'all hands on the schooner were engaged in taking in sail, preparatory to-landing at one of the city wharves ; 'that when the schooner was about thirty yards from the skiff, one of the men on her, while hauling in the flying-jib, observed tbe skiff about thirty yards-in front, and gave' tbe alarm, ‘ Boat ahead’ ;" that the mate of the schooner immediately gave the order to luff, and the wheel was immediately put down,- which turned the schooner’s head to the east ;v:that a collision be- • tween the schooner and the skiff occurred before the course of tbe former could be changed after the alarm, and the plaintiff’s said negro was drowned ; that* the white'man in the skiff clung to the anchor which wit's hangiog to the bow of the schooner, and was saved by-'-iihe crew;-'that a 'feat was lowered from the- schooner, to:-search for the negro, but, not finding him,' and a sail-boat coming up to render assistance, the schooner pursuecfher course;1
    “The evidence fiuthfer tended-to show, that the schooner' was 'going at the rate of three or four miles an hour", but had-slackened her head-way, before the collision occurred, by taking down her ■ sails. A Witness, Who was on the schooner, stated, that be got a glimpse of tbe skiff just before the order was given to take in sail, but thought from her position that -she was playing about the river, and did-not know that-shé was fastened ; that he did not notice theskiff any- further, and did not give any notice that he had seen her; It was in evidence, also, that the persons in the skiff -had-An uninterrupted- view of the schooner approaching them for a quarter of a mile off, and made no effort to ■ get out of the way of the schooner until she was near them, when The white man tried to unloose the chain, but did not succeed, and the negro tried to push the skiff off,but could not; and that the skiff could hate easily gotten-out of the way of the schooner, if she had- not been fast-ened. It was also fin evidence,-..that the-persons in the skiff cried out to the schooner, and raised a paddle as-warning when the schooner was near ; bu t-their cries were- • not heard, and the paddle was not seen, by tliose on the schooner. It was in evidence, also, that' the course of a ■ schooner, of the Clotilda's size, and going at the rate she was, might or might-not be-changed* within one hundred-• and fifty or two hundred feet; hut the ease and quickness with which it could-be done depended much on-.the sailing... qualities of the vessel, and on the quickness-with which she answered her helm, . It was further in evidence, that ' the space between th© eastern shore and the snag was about one hundred and thirty-yards, and about two hundred yards • between the snag and the westermsbore ; that- there was - water enough on either side of the snag for -the schooner to pass ; that the schooner was of 'about one hundred and- - twenty tons’ burden, ■ and was returning to Mobile from-Texas ; that she had no pilot on board, hut was- -under the charge of the captain,.-who had served as such for twenty years, had been to and from, the port of Mobile for about -1 nine years, and, within the lastutwo or three years; had several times piloted his own boat up and down .the chan- - nel, and was well acquainted with1 it; that -'said schooner had her full complement of men -.and officers, but two of the men, though on-duty, were sick-; that the captain was- - acting as pilot at the. time of the collision, and- was at the helm, and that the customary look-out was kept. ■ It was in evidence, also, by pilots on said river* that it was usual and customary for masters of vessels of the size and tonnage ■ of the Clotilda, well acquainted with the-channel, to take - their own vessels into port without a pilot; that at the ■ time said schooner was ascending the river, and while some; -.- 'four hundred yards from her, another vessel, about the ■same size, or somewhat larger, called the Victory, was seen •descending ; that the two vessels were approaching each -other at the rate, respectively, of four and five miles an hour, and each was watching the other, being apprehensive of a collision ; that 'there would have been great danger of a collision between the two vessels, if the Clotilda ■had changed her course to the west, she being to the east of the Victory, and that she would have run aground if she bore to the eastthat the schooner ran across the chain, •by which the skiff was fastened to the snag, drew the skiff in, and struck her, scraping the snag, and thus overturned her ; that no cry from the skiff was heard on the schooner, ■and no signal was seen ; that those on board the Clotilda, •did not know, until after the collision, that the skiff was fastened ; that if the-skiff had not been fastened,, it would, from the manner in which the schooner struck it, have passed safely along the side of the schooner-? and that if it had not been fastened, a push, given to it by one of the 'men just before the collision, would have -cleared it of the schooner, and the-collision would not have'happeued. The proof tended to-show, also, that there was plenty of room east of the snag, and plenty of water for the schooner to pass the skiff-on that side, though one of the defendants’ witnesses thought there was not? also, that the snag could be seen two or thi’ee hundred yards off, and was seen by the pilot of the Victory one hundred and fifty yards above the place of collision? and said pilot also saw, at that distance, before the collision took place, that the skiff was fastened to the snag. The tide was running out at the time, and the Clotilda was coming up against the tide. The white man who was on the skiff testified, that the skiff was on a line between the snag and the schooner when first seen by him; but other witnesses testified, that the skiff was lying across the stream, with her head to the east.”
    The above being all the evidence introduced, the court «charged the jury, at the request of the plaintiff’, as follows’:
    
      “ 1. It is for the jury to determine whether both or either •of the parties was guilty of negligence.
    “2. The jury are to judge whether the plaintiff was at fault in fastening the skiff to -the snag-.; and if they belief that, by fastening her to the snag, she was in a safe •and secure place, unless rendered insecure and unsafe by •the negligence of the schooner, then the skiff was not in ■an improper place, and was guilty of no neglect by being at such place.
    “3. A vessel, entering a harbor, is bound to keep the most vigilant watch, to avoid a collision with other vessels, at anchor or in motion.
    “ 4. Because a skiff, or a small boat, is in a wrong place, it will not justify a schooner in running over her, if she could have avoided it by proper diligence.”
    The defendants excepted to the second and third of these charges, and then requested the court to give the following charges:
    “1. If the jury believe, from the evidence, that'' the schooner had, at the time of the collision, a sufficient number of competent officers and men for her management, and they used ordinary care and diligence to prevent a collision with the skiff then the defendants are not liable for the consequences of the collision.
    
      “2. If the skiff was chained to a snag in the channel of the river, and in the common track of vessels passing up ■and down the river; and those in the skiff could see the schooner coming up on them, and did not make timely efforts to loose the skiff and get out of the way, — then the plaintiff cannot recover.
    “3. If the evidence shows, that those who had control of the skiff fastened it, with a chain, to a snag in the channel of the river, where boats and vessels were known to be passing and repassing continually, the persons in charge of said skiff would be chargeable with a want of proper care and prudence, and the defendants would not be chargeable with the consequences of the collision, if the master and crew of tbe schooner exercised ordinary care to avoid the collision. .
    “L-Jf the .jury .believe, from,the evidence,-.that the persons in-charge of the skiff'-placed her imthe channel of the river, where vessels were constantly passing and repassing, and, by fastening her with a chain to a snag* prevented her from gettiirg out of the way of the schooner, the plaintiff must abide the consequences of. the misconduct of those in charge of the skiff, and cannot recover in this action,
    “5. If the jury believe, from-,, the evidence, that there was a want of due. care-and diligence on the part of the master and crew of the schooner, in .not avoiding the skiff,, and that-this negligence could haye been,-.avoided by- tbe exercise of due diligence and .ordinary care on. the part off those in charge of tbe skiff, then the. plaintiff., cannot recover. .
    “G. If the jury believe that the person.in charge of the, skiff, with the plaintiff’s negro, took the skiff on Sunday; morning, and fastened it with a chain to a snag, near- the middle, of the channel of the. river, where boats and vessels-are passing constantly,; „and that, the skiff, when the .danger of a collision was apparent, could not be removed out of the,; way of the schooner, in consequence of being.thus fas-, tened, — then the plaintiff cannot recover in this case.
    “7. If the jury .believe, from the evidence, that, the persons in charge of the. skiff fastened her. to,, a snag, in the; channel of the river, where vessels were constantly passing, and repassing, and remained, there several hours, and that the schooner ran over her while in that condition,-, and the, negro was drowned; then, the plaintiff cannot recover,, unless the negligence of the master, and, crew of the;.seho.oner was gross or wanton. .
    “8. If the jury believe, from tbe> evidence, that tbe mas-, ter and crew of the schooner used ordinary care and diligence in coming up the river, and seeing the skiff at one hundred and fifty or two hundred feet in the .channel of the riyer, but not knowing that she, was ..fastened, made no.efforts or arrangements to avoid her ; and that the master ? and crew of the schooner only became aware of the true-condition of the skiff when it was too late to avoid a collision, — then, it could only be required of them to exercise’ sueh care and -diligence, in the management- of -the schooner, as to do no more injury than was inevitable,
    “9. If the jury-believe, from the evidence, that the mas» ter was prevented from sailing farther to the west by the belief that his schooner -would-probably have come in collision with-the Victory ; and that the master and crew of tire schooner,',so-soon-as they discovered■ the situation of-the skiff, used their best skill and judgment, and employed the means at their command, to avoid and prevent -the coElision, — then the plaintiff cannot recover.”
    Of these charges, the court gave the first ■ and eighth as» asked, and also gave -the- seventh with a qualification,~ (which is not stated fully- in the bill of exceptions,) but refused the others.; and the defendants excepted to their refusal. -
    The charges given, .and the refusal of the charges askedr are now assigned as- error,-.
    R. H. Smith, and, Daniel Chandler, for appellants.
    E. S. Darg-an,. Jno. T. Taylor, and Jno. Hall, contra.
   A. J. WALKER, C. J.

It is probable that the tendency ■" of the second charge given by the court was to mislead'-»’ the jury ; but we will not reverse on that account. If in* fact the place where the skiff was hitched-was-'safe and se-~ cure, except as rendered otherwise by the negligence of'defendants’ vessel, we suppose it might-bd affirmed, as a legal ‘ proposition, that it was in a proper place. But a skiff-would certainly be fastened in an improper place, if-hitched so as to be difficult • of removal, in the channel along which .vessels auei frequently passing. The place would be improper, because of the peril to-itself, and to - other vessels which might be passing. — The Scioto, Davies’ Rep. 365 ; 1 Parsons on Maritime Law, 201; Strout v. Foster, 1 How. (U. S.) 89. And it could scarcely be said •of a vessel thus situated, that it was safe and secure except as it -might be affected by negligence in the navigation of some-other vessel.

The third charge given asserts, that a vessel entering a harbor “is bound to keep the most vigilant watch.” Undoubtedly, a vessel entering a harbor is always bound to exercise -great care and diligence; — 1 Parsons on Maritime Law, 201 ; Culbertson v. Shaw, 18 How. 584 ; Ward v. Dowman, 6 McLean, 231. The law exacts the exercise of ordinary care. What is ordinary care, must depend ¡upon the circumstances of each case. ■ The degree of vigilance which would be -ordinary care on the part of a vessel entering a rarely frequented port in the day-time, would not be ordinary care in a vessel entering a much frequented port, abounding in ships, in a dark night. The law exacts an increase -of vigilance with the circumstances which increase its necessity. — Kelly v. Barney, 2 Kern. 429 ; The Scioto, Davies’ Rep. 361. Whether or not the circumstances of this case were such as to require the very greatest vigilance, was a question for the jury. The court should have instructed the jury to consider the number of vessels accustomed to frequent the port of Mobile, whether it was day-time or night, and any other circumstances in the case affecting the question ; and left it to the jury to determine what degree of vigilance was requisite to fill the rule requiring ordinary care. Negligence is, ordinarily, a question for the jury. — Hibler v. McCartney, 31 Ala. 506. This charge was erroneous, because it invaded the province of the jury.

We will be aided to a proper comprehension of the questions raised by the refusals to charge as requested, by ascertaining first some of the leading principles which govern in cases of injuries, resulting from the mutual fault of the two parties. It is a general doctrine, long known in the common law, that where the injury is the result of the concurring -faults of the parties, no action accrues to either. In the courts of admiralty, the burden of the injury is apportioned upon equitable principles. — Angelí on the Law of Carriers, §§ 633-, 556. Under the common-law doctrine, which controls in this case, it is not sufficient to preclude the plaintiff’s recovery, that he was in fault; but his fault must be such as contributed proasimatek/ to the injury. — Steamboat Farmer v. McCraw, 26 Ala. 189 ; Grant v. Moseley, 29 Ala. 304 Chitty on Carriers, 273 ; Trow v. Vermont C. R. R. Co., 24 Verm. 487 ; Kerwhacker v. Cleaveland, C. & C. R. R. Co., 3 Ohio State Rep. 172 ; Dowel v. General S. N. Co., 5 El. & Bl. 195 ; Davies v. Mann, 10 M. & W. 546 ; Cummins v. Presley & Spruance, 4 How. 315. The negligence which is the proximate cause of injury, and deprives the injured party of a right of action, is that which occurs at the time.- — -Trow v. Central R. R. Co., supra ; Button v. Hudson River R. R. Co., 18 N. Y. (4 Smith,) 248 ; Harrison v. Berkley, 1 Strob. 525, 549 ; Steamboat Farmer v. McCraw, supra.

It is also a principle belonging to this branch of the law,that although an injury may be occasioned by the defend- 'j ant’s negligence, yet the inj ured party is entitled to no re- / dress, if by the exercise of ordinary care he might have avoided-'the consequences of the defendant’s- negligence. Chitty on Carriers, 273 ; Bridge v. Grand Junction R. R. Co., 3 M. & W. 244 ; Raisin v. Mitchell, 9 Car. & P. 613 (38 E. C. L. 252).; Butterfield v. Forester, 11 East, 60 ; Barnes v. Cole & Fittzhugh, 21 Wendell, 188 ; Rathbun v. Payne, 19 Wendell, 399. This principle seems to- grow naturally out of the doctrine which- denies a recovery where the plaintiff’s negligence has contributed to the production of the injurious result; for the law requires the exercise of care and diligence to avoid injury from another’s negligence ; and it would seem- that the omission of such care and diligence would be negligence, contributing proximately to cause the injury.

The principles which we have announced, lead us to the proposition, that if the negligence of the defendants’ schooner, was a cause of the disaster, which is the-subject of --complaint, then the plaintiff had a cause of action, unless- the negligence of the plaintiff’s servant, who* was drowned, contributed proximately toffhe- production o£ the injury; or unless those upon the skiff might, by the .exercise of proper care and: diligence, have prevented the .consequences of the negligence on the part of the defend■ants’vessel. ¡If the plaintiff’s .servant and'another, being in a skiff, fastened it to a snag in the. middle of the channel in front of the city of .Mobile* where' vessels, were frequently .passing, and fastened it in such aananner that it could not . be conveniently and expeditiously loosed, they were guilty .of negligence, because .they thus placed themselves in a ¡situation of peril from accidents. But if the skiff, being in that situation, was sunk in consequence of the carelessness ■of a passing vessel, we cannot -say that the fault of so placing the skiff was a proximate cause of the injury. It may be. regarded as a cause; but the connection between it and the resulBwas. not so immediate, that it could properly be denominated, the,proximate cause. — See Harrison v. Berkley, 1 Strob. 525. That it is not a proximate cause, is copiously illustrated by the- decisions .in, analogous cases, ¡to some of which we refer.

Thus, a flat-boat, culpably running at-night, which was struck and sunk by a steamboat,-was by this-court held not to have, proximately contributed to the injury. — Steamboat Farmer v. McCraw, supra. A plaintiff, who - left his donkey .upon the highway, with feet so fettered- as to be unable to get out of the way, notwithstanding that was an illégal act, was .permitted to recover for the-killing, of the donkey, through the negligence of one who was passing along the highway-'with- a wagon. — Davies v. Mann, 10 M. & W. 546. Where there was a collision between two boats, and, in consequence of the collision, an anchor fell upon .the plaintiff’s leg and broke--it, it was decided, that neither the fact that the anchor was improperly carried, nor the fact -that the plaintiff was where he ought not to have been, i relieved the ■ defendant, if the collision was caused by his negligence. — Greenland v. Chaplin, 5 Excheq. R .(M., H. & G.) 243. A jury returned a verdict for the plaintiff, whose sloop, being at anchor, was struck by the defendant’s vessel, and announced'that-there were faults on both rides; and the verdict was alloWed'to -stand, because the plaintiff might be -in fault, and yet have*a-right of recovery.* — Raisin v. Mitchell, 9 Car. & P. 613. See, also, Trow v. Central R. R. Co., 24 Ver. 488; Kerwhacker v. G., & C. C. R. R. Co., 3 Ohio R. 172; Cook v. Champlain Transportation Co., 1 Denio, 91.

It is extremely difficult, if not ’impossible,-to 'draw the line -which divides proximate from ’remote 'causes; and it is, therefore, not unreasonable to find the cases on each side of the line so nearly alike as. to'be-scarcely distinguishable. Nevertheless, the authorities to which we have -been referred *to Show that the placing’-the • skiff in the situation described was a proximate eause- of’the injury, maybe distinguished from this- case. In some of them, culpable failure to display a light was evidently regarded as an immediate cause of a collision at-night, and as the omission of a duty at the time which contributed to the injury. — Dowell &. Gen. Nav. Co., 5 Ellis & Blackburn, 195 ; Rathbun v. Payne, 19 Wend. 399; Barnes v. Cole & Fitzhugh, 21 ib. 188. In the case of Button v. Hudson River R. R. Co., (18 N. Y. 248,) it appeared that the man,“for fhe'killin'g of whom theaction was brought, within sixmainutes before the arrival of • a train of oars, placed himself with his head ¡¡apon the -track--on one’• side, and with his feet'upon the other,-.and* not being seen until it was too late to stop the cars, was killed. The court, in reference to those facts, presuming. ihe--deceased to have<-been in his senses, said, that the deceased must-be regarded as having courted his awn destruction, and co-operated-with the defendants in its production. The distinction between»that case and this is too manifest to render-comment necessary; and-an examination of the decision will show-that it fully recognizes the principles which we have announced. Although there may have been a fault in the placing of the skiff in the situation described an* the record, yet the -plaintiffs may recover, if the defendants’ negligence Gáused the injury, and those who were in the management-of the skiff could not by the exercise of proper diligence, have avoided the consequence of the defendants’ negligence. — Bridge v. Grand Junction Railway Co., 3 M. & W. 244.

It follows from what we have said, that the improper placing of the skiff constituted no defense against the liability of the defendant for negligence directly operating to cause the injury but that if the persons in the skiff could have released it from the snag, and avoided the threatened collision, by the use of reasonable care and diligence, .and did not do so, then-the defendantis not liable, although the negligence of his vessel may have-contributed, to the production of the disaster.

We now proceed to: test the correctness. of the several-refusals to. charge by the principles above set forth. The-second charge requested was properly refused, because, as-.suming upon the facts stated that those in the skiff could, by the use of proper diligence, have avoided the disaster,-., it makes the defendants’ exemption from liability depend-upon the failure to use timely efforts to loose the skiff and get out of the way. The question should have been left to» tire jury, whether, by the use of proper diligence, those in, the skiff could have loosed her and got out of the way., The refusal to give the third charge was proper, because the tendency of the charge was to-mislead, the jury, by producing the impression, that the placing the skiff as it was placed was, in itself, an act which, for the purposes of this -trial, rendered the plaintiff.chargeable with negligence. There was no error in- the refusal of the fourth and sixth charges requested, for the negligent act- mentioned in them was only a remote cause of. the injury. The fifth charge requested was in - strict accordance with one of the principles which we have laid clown in the foregoing opinion, and ought to have been given. The 7th charge as requested is not fully copied into the transcript, and we are unable to pass advisedly upon it. The 9th, charge requested was erroneous, because it excludes from ■ the consideration of the jury the question, whether the defendants’ vessel was not guilty of negligence,- on-, account, of the failure to see the skiff, and to take steps for avoiding the collision, sooner than it did.

The judgment of the court below is reversed, and the canse remanded.  