
    Alexander Jones vs. The Baltimore & Potomac Railroad Co.
    Decided June 1, 1885.
    Justices Cos, James and Merrick sitting.
    Law. No. 24,864.
    A railroad draw-bridge was erected across the Potomac river by a railroad company under authority of an act of Congress. The statute provided that the company should keep the bridge and draw in efficient working condition at all times. A schooner passing through the draw of the bridge so injured it that it was immediately closed by the company and kept so for four days, during which time the repairs made necessary to the draw were prosecuted with all due diligence. By reason of the closing of the draw, a tug boat was detained and prevented from performing her regular business. Held, that she was entitled to recover damages for the detention.
    The Case is stated in the opinion.
    Nathaniel Wilson for plaintiff:
    Those who, for commercial purposes, are using a navigable stream as a highway for vessels have the primary and paramount right thereto ; and every obstruction of the navigation thereof, or hindrance to the free passage of vessels upon it, is prima facie unlawful. People vs. Vanderbilt, 38 Barb., 282; Davis vs. Winslow, 51 Me., 268 ; Birch vs. Schalf, 28 Penn. St., 195; Milwaukee Gas Co. vs. Steamer Game Cock, 23 Wis., 144.
    Private individuals suffering special damage for the unlawful, unnecessary, or unreasonable obstruction of navigable waters are entitled to maintain a civil action against the obstructors. Pierce on Railroads, 201; Thompson on Negligence, vol. 1, p. 558, and cases there cited; Riggs vs. Belts, 22 Eng. L. & E., p. 240 ; Rennich vs. Morris, 3 Hill, N. Y., 621; Pennsylvania vs. Bridge Co., 13 H., 518 ; Garritee vs. Baltimore, 53 Md., 422.
    It has been expressly determined by the Supreme Court of the United States that the Potomac is a navigable river, is a part of the jus publicum, and that any obstruction, to its navigation gives to any particular individual who has sustained special damage therefrom the right of private action for such special damage. City‘of Georgetown's. Canal Co., 12 Pet., 98.
    A railroad company being authorized by its charter or hy special legislation to erect, or to use and maintain, a bridge crossing a navigable stream, the condition imposed by the law authorizing the structure must be strictly complied with; and the failure to comply gives a right of action to a party who thereby suffers a special damage. Pierce on Railroads, p. 202.
    The charter or legislative authority for the maintenance of such a bridge is to be strictly construed; nothing is conceded hut what is granted in plain terms. Hughes vs. N W. R. R. Co., 18 Fed. Rep., 113, and cases there cited; Rogers vs. K. & P. R. R., 35 Me., 319; Dungan vs. Bridge Co., 27 Penn. St., 303.
    When a railroad company is authorized by charter to erect a bridge over a navigable stream, with power to mate repairs, &c., a temporary frame work has been held to be an obstruction, within the meaning of the charter, for which the company would be liable to compensate a person damaged thereby. Memphis & Ohio R. R. vs. Hicks, 5 Sneed, Tenn., 428; Hole vs. S. R. R., 6 Hurls. & Nor. (Exch.), 488.
    Enoch Totten for defendant :
    The obligation imposed upon the railroad company by this statute is certainly not greater than that imposed upon towns, counties and cities in the United States in relation to bridges. In Massachusetts, Maine and Rhode Island the statutes require the corporations to keep this highways in repair, “ so that the same may be safe and convenient for travelers, with their teams, carts and carriages at all seasons of the year.” Angelí on Highways, § 259, note.
    A bridge carried away by a flood, must be rebuilt within a reasonable time, regard being had to the importance of the road, the recognition of the work, the opportunity of procuring materials, and other circumstances connected with its 'reconstruction. Angell on High., § 270 ; People vs. Tisdale Turnpike Co., 23 Wend., 254; City of Madison vs. Ross, 3 Ind., 236 ; City of Providence vs. Clapp, 17 How., 161; Hall 
      vs. Richmond, 2 W. & Minot, 344; Reed vs. Northfield, 13 Pick., 94; 1 Thompson Neg., 555, note.
    Even in cases of injury to passengers by means of an accidental defect in a bridge, the railroad company is not an insurer. It is bound to employ skilful workmen, and to see. to it that the bridge has been properly constructed and properly guarded and inspected. Having done this, the company does its whole duty and cannot be held as an insurer; it is not liable for accidents which skill and care are unable to avoid. Toledo, Peoria & W. R. R. vs. Conroy, 68 Ill., 560.
    In the case of Townsend vs. Turnpike Road (6 John., 90), a traveler with his team was passing over a bridge of the defendant, and the bridge broke and fell, killing one of the horses. The proof showed that the defect was latent, and that on the morning of the day of the accident, the bridge had been inspected and some repairs had been put upon it by the defendant. Held, that “ the defendants are bound to bestow ordinary care and diligence in the construction and preservation of their bridges. They are not responsible for accidents if those accidents do not arise from the want of ordinary care and skill. See also Wilson vs. Susq. Co., 21 Barb., 79.
    The degree of diligence required of toll bridge and turnpike road companies has been held to be greater than that enforced ordinarily, because of the contract relations between the parties and the special consideration paid. Penn. & D. Canal Co. vs. Graham, 63 Penn. St., 290.
    When a corporation, in consideration of the franchises granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person, arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest, lightning, or the wrongful act of some third person, of which they had no notice or knowledge. See also Monongahela Bridge Co. vs. Kirk, 46 Penn. St., 113; Penn. R. R. Co. vs. Patterson, 73 Penn. St., 491.
    Where a statute requires the company to make.and keep up a fence, it is not to be construed to mean that it shall be constantly kept up ; that it may not get out of order, without thereby placing the company in the light of violating the statute; on the contrary, it is well settled that where a proper fence is once made, then if from any cause it becomes defective or insufficient, or is thrown down or left open, that it is the duty of the company to know and ascertain the same within a reasonable time, and thereafter, within a still further reasonable time, to repair or restore the fence to a proper condition.
    In such cases, the company is without fault; and having discharged its duty to the public by making a fence, is, under the statute, not liable for subsequent defects, if diligence has been used to discover and remedy the defect. Aylesworth vs. R. R. Co., 30 Iowa, 459 ; Lemon vs. Chicago & N. W. R. R. Co., 32 Iowa, 151; McCormick vs. R. R. Co., 41 Iowa, 193 ; R. R. Co. vs. Swearingen, 47 Ill., 206; R. R. Co. vs. Barrie, 55 Ill., 226; Smith vs. R. R. Co., 24 Ind., 162; Swearingen vs. R. R. Co., 23 Ill., 289; Hall vs. R. R. Co., 88 Ill., 368; Bartlett vs. R. R. Co., 20 Iowa, 188; Amslo vs. R. R. Co., 47 Ill., 173; Rorer on Railroads, pp. 640 and 647, 1414.
    The case of Dugan vs. Bridge Co., 27 Penn. St., 312, relied upon for the plaintiff, is in favor of the defendant and not against it. The statutory requirement in that case was that the bridge should not be so built “as to injure, stop or interrupt the navigation of said river by boats, rafts or other vessels.” It is practically conceded in that case that if the obstruction had been by act of providence or of a third person the company would not be liable. See also Lehigh Bridge Co. vs. Lehigh Coal Co., 4 Rawle, 24; Penn. Canal Co. vs. Graham, 63 Penn. St., 290.
   Mr. Justice Cox

delivered the opinion of the court.

This is an action brought by the plaintiff, Jones, as the owner of a steam tug, against the railroad company for keeping the draw of the bridge crossing the Potomac river closed for four days, by reason of which the plaintiff was detained and his tug prevented from prosecuting her regular business on the river. For this he claims damages.

It was agreed that the case should be certified to the General Term, and if the court should be of the opinion that the plaintiff should pay the judgment, that judgment should be entered for $293.15 with costs.

As set forth in the agreed statement of facts, it appears that the draw of the bridge had been injured by a schooner which passed through it, and that it was immediately closed by the company and kept so for four days, during which time the-repairs made necessary to the draw were prosecuted with due diligence, and this tug boat was detained and prevented from performing her regular business during that period of time.

The case seems to have been argued for the defence as if the proximate cause of the injury to the plaintiff was the act of this schooner in passing through this bridge and injuring the draw. That is not the subject of complaint on the part of the plaintiff. The subject of complaint is the closing of the draw by the railroad company — the voluntary closing of it — and the keeping of it closed for a period of four days. We have been referred to authorities holding, generally, that a railroad or bridge company is not an insurer of the condition of the road or bridge at all times and of its fitness for travel; that a company of that kind is simply responsible for due diligence, and in this case it seems that it used due diligence in putting the bridge in repair.

It is claimed that'the closing of the draw was necessary in order to make the necessary repairs. It was necessary, it is said, in order that travel, over the bridge could be resumed, which was vastly more important than the travel up and down the river.

It does not appear, however, from the facts, that it was at all necessary to keep the draw closed in order to make the repairs, and it does not appear either that it was necessary for the ordinary travel, because non constat that the travel might not have been conveyed across the river by a ferry boat. But whether it was or not is immaterial, unless the proposition can be maintained that the right of way over the bridge was paramount to the right to navigate the river, and that can hardly be said in the face of the law which gives the railroad company the privilege of going over the river, and which says that it shall keep the bridge and draw in efficient working condition at all times.

We think on the whole that the plaintiff is entitled to recover, and the judgment will be entered according to the stipulation.  