
    *City of Petersburg v. Applegarth’s Adm’r.
    [26 Am. Rep. 357.]
    March Term, 1877,
    Richmond.
    1. Owners of Wharves — Obligations as to Hidden Obstructions. — According to the principles of the common law, the owner of a wharf who receives or is entitled to receive wharfage for vessels moored to said wharf, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf in which vessels lie while moored thereto, free from obstructions, and is liable for any damage done to any such vessel by reason of the neglect of such duty; and the same principies apply, whether such owner be an individual, or a corporation, whether such corporation be private or municipal.
    2. The city of Petersburg owns a wharf in the Appomattox river, for the use of which the city is authorized to charge and does charge wharfage. In October 1872 the vessel of A not being able to get to the wharf at which she was to deliver her loan on account of an obstruction in the stream by another vessel, drew up to the city wharf and moored to it, and whilst waiting there she sunk on the next low water, ¿rom a pile going through her bottom. This pile was oak, being about two feet from the wnarf, in the stream where a vessel at the wharf would probably lie, and was visible at low water, though it was some two feet or more above the bed of the river, and was firmly fixed there- — Hkld:
    1. Dlidi’iictions — Liability of Municipal Oorii orations. — -The allowing such an obstruction in the place where it was, was negligence; and the city of Petersburg being the owner of the wharf, is liable for the damages occa»sioned by it.
    2. Same — Same—Delegating Duties. — The fact that the city had appointed a port warden whose duty it was to attend to the removal of obstructions in the stream, and to attend to the duties of the city in regard to the city wharf, docs not exempt the city from liability for the damages. The port warden in this matter is but the agent of the city, and the principal is always bound for the acts and neglects of his agent. The same rule which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation which can only act by an agent.
    322 3. Same — Same—Same.—The fact that it has been made by statute the duty of the Tower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, cannot relieve the city from her liability. The city is in fact the company owning all the stock and appointing the officers of the company. But even if it was an independent organization, its obligation to perform a duty which the city is also bound to perform on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty.
    4. Same — Same—Federal Appropriations. ■ — Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged it. This does not relieve the city from its common law liability in regard to the city wharf.
    5. Same — Same—Receipt of Wharfage. —Nor does it make any dnference, that in this case no wharfage was actually received by the city, and that it does not usually charge wharf-age in cases where the vessel mooring at her wharf is not to be unloaded there. It is sufficient that the city was entitled to charge wharfage.
    This is a supersedeas to a judgment of the circuit court of the 'city of Petersburg, rendered on the 4th day of June 1873, in an action of trespass on the case brought by William Applegarth against the city of Peters-burg.
    The declaration contained four counts. The first was in substance as follows: that before and at the time of the committing of the grievances, hereinafter mentioned, the defendant was the owner, and was possessed of a certain wharf for the landing, moo ring, loading and unloading of vessels on the banks of the Appomattox river, within the corporate limits of the city of Petersburg, and known as the city wharf, near to which said wharf there was then a certain obstruction, to wit: a pile before then, by the defendant carelessly and negligently placed, and • then being at and upon the bottom of said river, over which pile, at certain states of the tide of said river, the vessel of the *plaintiff hereinafter mentioned would float, but at other states of said tide said vessel would not float, of all of which premises said defendant had notice at and before the time aforesaid; th^t at the time of the committing of said grievances, and while the defendant so owned and possessed the wharf aforesaid, the plaintiff owned and possessed a certain vessel called the North Carolina, of great value, to wit: of the value of $5,000, then being lawfully, by sufferance and permission of said defendant, at and along side said wharf for reward to said defendant in that behalf; and said defendant had the management and control of said wharf, and the mooring and stationing of-vessels at and near the same, whilst such vessels were at such wharf for the purpose of using the same, and said defendant had the legal right to charge and demand of the said plaintiff wharfage therefor; yet the said defendant, at the place aforesaid, and on the 15th day of October 1872, unskilfully,_ negligently and improperly moored and stationed said vessel of said plaintiff in that part of said river near said wharf and over said obstruction, to wit: over said pile, and unskilfully, negligently and improperly detained said vessel for a long and improper time over said pile, and until said vessel on the day and pear aforesaid, upon the natural and usual fall of the tide in said river came, fell and lodged upon, and struck against, said pile it the bottom of said river, and there remained and continued upon, and striking against, said pile for a long time, and thereby became, and was greatly strained, bulged, Drolcen, pierced and injured, and was sunk; in consequence and by reason of which injuries, done by said defendant, said plaintiff necessarily sustained great damage, to wit: a loss of $1,262.43, which said sum he avers he necessarily expended in raising said vessel and her cargo, and in *repairing said vessel, and the further great sum, to wit: the sum of $650, special damage which said plaintiff necessarily sustained by being deprived of the use and enjoyment of said vessel, and her ordinary gains and profits to said plaintiff during the time that she was sunk, being raised and repaired.
    The second, third and fourth counts are very nearly to the same effect with the first, and it is unnecessary to state the particulars in which they differ from each other.
    The plaintiff having died shortly after the institution of the action, his death was suggested, and the action was revived in the name of his administrator, George S. Bernard.
    Thereafter the defendant filed a demurrer to the third and fourth counts of the declaration, in which demurrer the plaintiff joined. The court sustained the demurrer to the third count, and overruled the demurrer to the fourth count; and thereupon the defendant pleaded not guilty to each count of the declaration, except the third, and issue was joined on the said plea. The issue was tried by a jury, which, on the 3d day of June 1873, found a verdict in these words: “We, the jury, find for the plaintiff, and assess his damages at eighteen hundred and eighty-five dollars and eighty-six cents, with legal interest thereon from December 16th, 1872, till paid.” Whereupon the defendant moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence in the cause; which motion was overruled, and judgment was thereupon rendered according to the verdict.
    Two bills of exceptions were taken by the defendants to certain rulings of the court in the progress of the trial, and were made a part of the record. One *related to the instructions which were given or refused by the court to the jury, and the other to the ruling of the court in regard to - the motion to set aside the verdict and grant a new trial. In the former, so much of the evidence was set out as was deemed to be necessary or proper to show the relevancy of the instructions. In the latter, is contained a certificate purporting to be of all the facts which were proved on the trial. That certificate is in substance as follows:
    “The court certifies that after the jury were sworn to try the issue joined in this cause, the following facts were proven before the jury on the part of the plaintiff, viz: That the vessel of the plaintiff’s decedent, Wm. Applegarth, called the North Carolina, which was in thorough order and repair, and of the value of $3,500 or $4,000, arrived at Peters-burg about two o’clock A. M. of 15th October 1872, with a cargo of 131 tons of coal, consigned to Marks & Friend, of that city. That she was not able to get to their wharf, in consequence of he river being blockaded by a dredging machine lying alongside the steamer Fanny Lehr, at the wharf rented by the Powhatan Steamboat Company from the city, and made fast to another wharf of the defendant, below, known as the city wharf. That next morning, 15th October 1872, the tide being low, she could not get up to Marks & Friend’s wharf; and while waiting for the next high tide, Marks & Friend sold the coal to B. S. Burch, with the understanding that Burch was to send a tug at the next high water to tow her down the river; but Burch failing to do so, and the captain of the vessel, concluding not to wait, commenced, about three o’clock P. M. of 15th October 1872, to haul up to Marks & Friend’s wharf, and had proceeded in that direction about twenty feet, perhaps half the length of the whole vessel, which is eighty-six feet *long, whcn lie received a message from Burch that he would tow her down on the next high water, which would be about two o’clock A. M. That the vessel was immediately made fast to the city wharf, where she sunk on the next low water, about nine o’clock P. M., from a pile going through her bottom. And that on discovering that she was leaking, which was about twenty minutes to nine o’clock, her pumps were started, but she sunk in about twenty minutes. That every effort was made by the captain and crew to save the vessel and cargo and prevent their sinking, and every proper effort made to raise the vessel and cargo and repair the injuries done to the vessel by the sinking as quickly and cheaply as the same could be done. That the actual and necessary costs of raising and repairing the vessel was $1,235.86, and the actual and proper amount of demurrage was $650. That neither the captain nor owner of the vessel paid any wharfage, but they were liable to pay wharf- ‘ age under the city ordinance. That she was sunken by an oak pile through her bottom, which was sawed off by divers about eighteen inches or two feet from the bottom of the river, and the divers traced the pile, by feeling, about eighteen inches or two feet in the sand, and that the inclination was from the wharf, and that the pile entered the vessel about nine or ten feet from the keel and about five feet from her main mast, and tíiat an old piece of log lying between the pile and the wharf, about three feet long and eight inches in diameter, was pulled out by them; that the pile that entered the vessel inclined in the direction of the opposite side of the river, and was an oak pile, and in the opinion of an expert was a fender pile, or part of the city wharf, and that from where the pile entered the vessel to the wharf was about two and a half feet; that the pile *that entered the vessel was visible at low tide: that the river appeared to have been dredged not nearer than two feet from the. city wharf, but did not appear to have been dredged level, but in holes, and j the dredging on the outside of the pile would have caused it to incline outwards; that about! two or three years ago, when one of the plaintiff’s witnesses named Brown was at Petersburg, in command of another vessel, E. H. Stainback, the port warden of the city of Petersburg, directed him to haul his vessel about another length astern, as there was an obstruction or something else in the way, but what was not recollected, and that after the sinking of the North Carolina witness reminded Stainbeck of it; but it was also proved by the defendant that that pile was at a different place from the one where the North Carolina was sunk; that after the sinking of the North Carolina, some two or three inches of a stob under the water, and about two feet from the wharf, was seen by a witness, but the size of the stob, or whether it entered \ the vessel or not, could not be seen, and that ] the stob was five or six feet from the guards ! of the vessel, and that the stob seen under | the water was an oak pile and inclined out-i ward from the wharf. And it was further proved, that on the 25th day of October 1872, whilst the said vessel was being raised, the late William Applegarth addressed and caused to be delivered to E. H. Stainback, port warden of said city, and to Franklin Wood, the mayor thereof, trae copies of a notice which is in the words and figures following to wit: ‘To the Hon. Franklin Wood, mayor of the city of Petersburg: Dear Sir :• — This letter will inform you, and through you the city of Petersburg, that I shall hold said city responsible for all damages which I have sustained or shall sustain by reason of the sinking of *my schooner the ‘North Carolina’ and her cargo (one hundred and five tons of coal), whilst lawfully lying at the wharf of said city known as ‘the city wharf,’ on the ]5th day of October J872. Said sinking was caused by the carelessness and negligence of said city. I am now engaged in raising said vessel and her cargo, and will be glad to have from said city whatever assistance she may render. Very respectfully, yours, Wm. Applegarth, by Jones & Bernard, his attorneys.’
    “And the court'further certifies that the defendant, to maintain the issue, on his part, proved the following facts, viz: That when the wharf of the defendant at which the North Carolina was sunken was built, all its fender piles were oak, and all the piles on which the string timbers rested were pine. That the fender piles were placed about thirty feet apart, and are there still and none of them missing, and that the fender piles are all visible at high water, and that the oak pile on which the vessel sunk is smaller and not like the fender piles at said wharf. That some time between 20th and 30th September 1872, that part of the river along the whole length of the city wharf at which the North Carolina sunk, had been dredged to within about two feet of said wharf; and that the reason why it was not dredged nearer the wharf was for fear said wharf might be undermined and caused to fall; and that it was more than probable if the pile on which the North Carolina sunk had been there when the dredging was done, the shovel of the dredge would have struck it; that one of the witnesses was a member of the board of directors of the Lower Appomattox company, whose president and directors are appointed by the common council of the city of Petersburg, and that the said city, for the last three years, has furnished ■the money to open and keep open *the Appomattox river; but that since December 1871, the United States government has had charge of the river, and commenced operations in opening and cleaning out; that the dredging aforesaid, between 20th and 30th September 1872, was made by said witness under contract with the Lower Appomattox company; that he had no orders to dredge the river regularly; but when he did so, it was under a special contract with the Lower Appomattox company, and that under a like contract he dredged out another vessel that was sunk in the river at a different point between the first and latter part of October 1872; that the pile which sunk the North Carolina did not resemble the fender piles of said city wharf; that about eight or ten days before the sinking of the North Carolina, a three-masted schooner lay near the same spot of the sinking, but received no injury as far as known; that timbers often floated down the river from above; that during the late war the Confederate government built two bridges across the river, not far from the city wharf, at which bridge oak piles were driven down.
    “It was also proved that E. H. Stain-back was the port warden of the city of Petersburg since 1865, and that the conversation which took place two or three years ago, as proved by the plaintiff’s witness Brown, between him and E. H. Stainback, the port warden of Petersburg, occurred in November 1870, and the obstruction referred to by the witness Brown was reported to the Lower Appomattox company with directions -to have it taken out, and it was never seen there afterwards by the port warden; that no demand was made by the city for wharfage of the captain or officers of the North Carolina, because she had no cargo *to be landed there, and it was not the custom of the port warden to claim wharfage in such cases.”
    The foregoing are all the facts certified in the second bill of exceptions. In the first, besides the other evidence therein set forth, it is stated that “the plaintiff further gave in evidence section 20, page 8, and section 30, page 11, of the charter, and chapter 16 of the printed ordinances of the city of Petersburg, in the words and figures following, to wit:
    “Section 20, page 8, city charter:
    “20. The common council shall have authority to provide by otdinance for the appointment of such officers as shall be necessary or proper to carry into full effect any authority, power,, capacity or jurisdiction which is or shall be vested in the said city, or in the common council, or in the mayor or aldermen thereof, except as hereinafter provided for; to grant to the officers so appointed the powers necessary and proper for the purposes above mentioned; to define their duties, to fix their terms of office, to allow them ■reasonable fees and compensation, and to require and take of all or any of them such bonds, obligations or other writings as they shall deem necessary or proper to ensure the proper performance of their several duties. All officers so appointed may be removed from office at the pleasure of the common council; and unless their terms of office be otherwise fixed by ordinance, they shall be considered as holding their respective offices at the pleasure of the common council.
    “Section 30, page 11, city charter:
    “30. It shall be lawful for the cornmoa council to *establish and construct landings, wharves and docks, on any ground which does or shall belong to the said city, and to repair, alter or remove any landing, wharf, or dock which has been, or shall be so. constructed, and to lay and collect a reasonable duty on the vessels coming to and using the same; and they shall have power to pass and inforce such ordinances as shall be proper to keep the same in good order and repair; to preserve peace and good order at the same, as well as at all other wharves and landings in said city, and to regulate the manner in which they shall be used. They shall have power also to appoint as many port wardens for the port of said city as may appear necessary; to prescribe their duties, fix their fees, and make all regulations in respect to such officers, as to them may seem expedient.
    “Chapter XVI. — Concerning the city wharf.
    
    “§ 1. Vessels lying at the city wharf shall for every twenty-four hours that they may lie there, pay two cents per ton, one half of which shall be retained by the port warden, in full for his services. If any such vessel shall remain at said wharf a less time than twenty-four hours, her master or owner shall pay the same rates as for twenty-four hours..
    “§ 2. If any master or owner of any such vessel shall refuse or neglect to pay the said rates on application by the port warden, he shall be liable to pay double the said rates.
    “§ 3. It shall be the duty of the port warden to remove obstructions to the navigation of the river within the city. If any master or owner of a vessel throw ballast overboard in any part of the river within the city, or suffer it to be done, he shall forfeit ten dollars *for every such offence. If any vessel, boat or lighter be sunk in any part of the river within the city, the owner or master thereof shall remove the same within thirty days after notice from the port warden so to do. If he fails so to do, the- port warden shall cause the same to be done, and draw on the chamberlain for the expense, retaining possession of the vessel. If the expense be not refunded, with ten per cent, damages, within ten days after such removal, the port warden shall sell the vessel at public auction, and out of the proceeds of sale shall refund the said expenses, with ten per cent, damages, and shall pay the balance to such master or owner. If the proceeds of sale be not sufficient to pay the said expenses, and ten per cent, damages, the chamberlain may recover the residue from the owner or master of such vessel. If the port warden shall fail, to perform any duty hereby required of him, he shall forfeit ten dollars for every such offence, and each week of such failure shall constitute a distinct offence.
    “§ 4. All goods landed on the city wharf, and remaining thereon longer than the space of forty-eight hours, after notice to the owner or consignee thereof to remove the same, shall be liable for the payment of twenty-five cents for every ten feet along said wharf occupied by such goods, for every twenty-four hours the same shall so remain, longer than the said space of forty-eight hours. If the said rate be not paid on application, the goods, or so much thereof as may be necessary, may be sold to pay the same.
    “§ 5. When the city wharf shall be rented, the lessee thereof shall be the port warden, and shall be entitled to all the profits arising therefrom, agreeably to the rates hereby established.”
    ’■‘The counsel for the plaintiff moved the court to instruct the jury as follows:
    No. 1. If the jury believe from the evidence, that the vessel of the plaintiff’s decedent (Wm. Applegarth, dec’d,) was on or about the 15th of October 1872, lawfully lying at the wharf known as the city wharf, and was, whilst so lying at said wharf, injured by a sunken pile or other obstruction in the Appomattox river, at or alongside of said wharf, and if they further believe from the evidence, that at the time of the injury said wharf was owned by the defendant (the city of Petersburg), and that the said city had possession of and exclusive supervision and control over said wharf, including the right to demand and collect wharfage of and from vessels lying at said wharf, and had like supervision and control over that part of said river adjoining said wharf, and in which vessels lying at said wharf usually float, and if they further believe from the evidence, that at the time of such injury it was the duty of said city, or of any officer or agent of said city, appointed and removable by said city, and subject to her control, to remove obstructions to the navigation of said river at and near said wharf, they must find for the plaintiff, unless they further believe that said Applegarth, or some agent of his in charge of his said vessel at the time of the injury, by his fault contributed thereto.
    No. 2. The owner of a wharf receiving tolls for its use, or having the right to demand and collect wharfage of vessels lying thereat, is bound to keep it in reasonably good condition, so that, as far as by the use of ordinary - are, vigilance and skill, such owner can make it so, it shall be fit for the use of any vessel, of the class usually frequenting and mooring at such wharf, and having the right of access thereto; and the ’’’existence of piles or other obstructions under the water, and projecting above the ground at the bottom in that part of the river adjoining said wharf, and in which vessels lying at the wharf usually float, is presumptive evidence of negligence on the part of such owner; and it is not sufficient excuse to show that the owner did not place the obstruction there, or even know of their existence.
    No. 3. If such wharf owner by his servants has the means of knowing the state and condition of his wharf, and of the river at, adjoining and near thereto, that is to say, in that part of said river in which vessels lying at said wharf usually float, and is negligently ignorant thereof, and an injury is occasioned by the imperfect condition of said wharf, or by an obstruction in the water at and near said wharf, and in said part of said river, such ignorance makes the wharf owner responsible to the same extent as if such owner knew of such imperfect condition of said wharf, or of the existence of such obstruction at or near said wharf, and in said part of said river, and negligently suffered the same to exist.
    No. 4. If such wharf owner knew of the existence of an obstruction to the navigation of the river at and near his wharf, in that part of said river in which vessels lying at said wharf usually float, and leave the same open and accessible to all vessels accustomed to move and lie thereat, without notice or warning to such vessels of such obstruction, and any damage arise in consequence thereof, said wharf owner is responsible therefor.
    No. 5. A municipal corporation, unless exempted by statute, is responsible for the acts and omissions of its servants, upon the same principle and to the same extent as a private individual. But it is necessary, in *order to make a corporation liable for the negligence of an officer, that the officer should be appointed and removable by the corporation, and subject to its control in the details of the particular work.
    No. 6. If the jury find for the plaintiff, they must give damages that will remunerate the estate of the late William Applegarth for the loss necessarily incurred in raising the vessel and repairing her, and for the use of the vessel during the time necessary to make the repairs and fit her for business.
    And thereupon the counsel for the defendant objected to the court giving the said instructions, Nos. 1, 2, 3, 5, and 6, or either of them, and moved the court to instruct the jury as follows:-
    1st. If the jury shall believe from the evidence, that the vessel of the plaintiff was sunk and damaged by striking against a pile in the Appomattox river, but that said pile was no part of the wharf of said city, nor used as a part thereof, then they must find for the defendant, unless they believe from the evidence that the defendant or its agents, under its authority or instructions, placed or caused said pile to be placed in said river, or unless said defendant or its agents, having knowledge or notice of the same, permitted it to remain, and failed or neglected to notify the plaintiff, or the captain or officers of the vessel of its existence there; and it is incumbent on the plaintiff to prove affirmatively that the defendant or its agents, under its authority, placed or caused said pile to be placed in said river, or had such knowledge or notice, and permitted it to remain, or failed or neglected to notify the plaintiff or the captain or officers of the vessel as aforesaid.
    2d. If the jury shall believe from the evidence, that'the vessel of the plaintiff was sunk and damaged by a *pile in the Appomattox river, but that such pile was no part of the wharf of the defendant, nor used as a part thereof, and that the duty was imposed by law on the port warden for the port of Petersburg, appointed by the common council of said city, under an act of the legislature of Virginia, to keep said river free from obstructions, and that said port warden neglected his duty in that respect, and in consequence thereof said pile was permitted to remain in said river, and said vessel was sunk and injured thereby, the jury must find for the defendant.
    3d. If the jury shall believe from the evidence, that -the,, vessel of the plaintiff was sunk and injured by striking against a pile in the Appomattox river, and that such pile was a part of the wharf belonging to the defendant, or waS used by the defendant in connection therewith, but that said pile was latent, then they must find for the defendant, unless they shall also believe from the evidence that the defendant or its agents had express notice of the existence of said pile, or unless its existence was so notorious as to be evident to all who had occasion to pass the place where it was; and it is incumbent on the plaintiff to prove affirmatively such notice or notoriety of existence.
    4th. The law does not require the defendant to scour and drag the river opposite to or alongside of its wharf continually, to ascertain what obstructions might be there, or keep guard along the banks of the river to prevent the commission of injuries by others; and if the jury shall believe from the evidence that the vessel of the plaintiff was sunk or injured’by striking against a pile in the Appomattox river, and that said pile was not visible to persons or vessels navigating said river or on the shore, and that there is no satisfactory evidence as to how such pile came to be *where it was, or of the probable cause of its being there, or that the defendant or its agents knew it was there, then the jury must find for the defendant; unless they shall be satisfied from the evidence that the defendant or its agents had failed or neglected to use reasonable care and caution to keep the river in suitable condition for safe navigation of vessels opposite and alongside of said wharf; and it is incumbent on the plaintiff to prove affirmatively such failure or neglect.
    5th. That in order to establish negligence against the defendant it is incumbent on the plaintiff to prove some fact which is more consistent with negligence than with the absence of it; and if the evidence in the cause is equally consistent with the existence or non-existence of negligence on the part of the defendant or its agents, then the jury must find for the defendant.
    6th. If the jury shall find for the plaintiff, then the amount of damages which they shall assess shall be the amount necessarily incurred in raising and repairing the vessel, and the gross freight which she might have earned during that time, less the expenses and charges which she would necessarily have incurred in earning the same.
    7th. The allegations in the plaintiff’s declarations and his proof must agree.
    But the court overruled the objections of the defendant’s counsel to the first, second, third, fifth and sixth instructions asked for by the plaintiff’s counsel, and gave the same to the jury, together with the 4th instruction asked for by said plaintiff’s counsel, to which no objection was made by the defendant’s counsel; and also overruled the motion of the defendant’s counsel as to the first, second, third and fourth instructions *asked for by the defendant’s counsel, and refused to give the same to the jury, but gave the fifth, sixth and seventh instructions asked for by the defendant’s counsel to the jury; and also, of its own motion, gave the following instruction to the jury, viz:
    “If the jury shall believe from the evidence, that the vessel of the plaintiff was sunk and damaged by striking against a pile in the Appomattox river, in that part of the river over which vessels necessarily floated in reaching said wharf, and near to and used as a part of said wharf of the defendant, and that said defendant was authorized by law to establish and keep open, and did so establish and keep open, said wharf, and were entitled to demand and receive wharf fees for landing and discharging at the same, then they may find for the plaintiff such damages as he may have incurred in raising and repairing said vessel, and also the value of the use of the vessel whilst undergoing said repairs.”
    To the giving of which to the jury the defendant’s counsel objected.
    Verdict and judgment having been rendered in favor of the plaintiff against the defendant as aforesaid, the latter applied to a judge of this court for a supersedeas to the said judgment; which was accordingly awarded.
    
      Jones & Bouldin, for the appellant.
    
      Bernard and Hinton, for the appellee.
    
      
       Torts — Municipal TiaMlity — Wharf Owners. — -See the opinion in Terry v. City of Richmond, 94 Va. 537, in which the court discusses fully the liability of a municipal corporation for its torts, citing and distinguishing the principal case and many other Virginia cases. As to duties of wharf owners, see 29 Am. & Eng. Enc. Law 86. In Mendil v. Wheeling, 28 W. Va. 250, the court says that the principal case "gives no countenance to the claim, that a municipal corporation owning and operating its waterworks and receiving ‘water rent’ for water furnished, is responsible in damages to a property owner for loss by fire through the failure of the city authorities to keep the water pipes in proper condition and repair.” In Ravenswood v. Flemings, 22 W. Va. 69, the principal case is cited for the proposition that municipal corporations are held to the strictest liability for any injxiry occasioned by reason of the bad repair of wharves owned by the city. See Maia v. Eastern Hospital, 97 Va. 510, for an instance of the non-liability of a public corporation for injury occasioned by its negligence on the ground that the said corporation acted exclusively as an agent of the slate. See also, Richmond v. Tong, 17 Gratt. 375; DeVoss v. Richmond, 18 Gratt. 344; Noble v. Richmond, 31 Gratt. 278; Orme v. Richmond, 79 Va. 89.
    
   Moncure, P.,

delivered the opinion of the court.

After stating the case he proceeded: The court is of opinion, that according to the principles, of *the common law, the owner of a wharf who receives, or is entitled to receive, wharfage for vessels moored to said wharf, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf, in which vessels lie while moored thereto, free from obstructions, and it liable for any damage done to any such vessel by reason of the neglect of such duty; and that the same principles apply, whether such owner be an individual or a corporation, whether such corporation be private or municipal.

In Sherman and Redfield on Negligence, § 585, the law is thus laid down by those authors, who seem to be fully sustained by the authorities' cited in their not^ to that section: “The owner or lessee of a dock, pier or wharf, receiving tolls for its use, is bound to keep it in reasonably good condition, so that, as far as by the use of ordinary care, diligence and skill, he can make it so it shall be fit for the use of vessels, and safe for all persons to enter upon who have a right of access. If the wharf owner receives tolls from the public generally, he owes this duty to the public, and is liable to any one specially injured by his neglect to fulfill it.” “It is negligence to permit anything to project from the side of a wharf in such manner as, by any probable combination of circumstances, to endanger the safety of vessels moored to the wharf. They are entitled to the unobstructed use of the water, whether it rises or falls. A wharf or dock owner receiving toll, does not fulfill his obligations by simply keeping the wharf or dock clear of obstacles and defects, which are visible upon an external inspection. If the general experience of persons in charge of wharves and docks has made it a fact of common notoriety among them, that such property is liable to become defective and dangerous from causes that cannot *be detected from a mere external inspection, the owner is bound to make such further examination as is usual among owners of like property, having interests of their own to protect from damage, of equal magnitude, with those of the community in general, which are exposed to danger in the particular case. A dock ought to be dredged and cleaned with sufficient frequency to enable all such vessels as are accustomed to enter it to do so without stranding or dragging. And if for any reason the owner of the dock cannot do this, or claims to be released from the obligation to do so, he must withdraw all express or implied invitation for the entry of vessels; and if they are accustomed to enter, paying toll, he must close the dock, or in some other way distinctly warn them to keep out of it. The existence of piles or other obstructions under the water, and projecting above the ground at the bottom, is presumptive^ evidence of negligence; and it is not a sufficient excuse to show that the owner, at the time of an injury thus caused, did not place the obstructions there, or even know of their existence. He should have tested the safety of the dock. But the owner of the dock does not insure vessels against injury in it, and, if he has taken all the care that can reasonably be expected of him, he is not liable for damage done to a vessel by an obstruction in the dock. The master of a vessel has a right to presume that all parts of a dock are safe, and is not guilty of contributory negligence by taking a place which might, under other circumstances not anticipated by him, be less safe than another.” In the notes to this section the following among other _ cases are cited, which were much relied on in the argument of this case, and seem to be very important. Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223; Mersey Docks Trustees *v. Gibbs, Law Rep. l H. of L. 93; and Pittsburgh v. Grier, 22 Penn. St. R. 54. In Parnaby v. Lancaster Canal Co., in which the complaint in the declaration was of a breach of duty alleged to have been created by a statute, the court of exchequer chamber (affirming the judgment of the court of QB.) held that such duty was not created by the clause of the statute referred to in the declaration, but arose upon a common law principle, that the owners of a canal, taking tolls for the navigation, were bound to use reasonable care in making the navigation secure, the want of which reasonable care might be collected from the declaration, although the complaint was ostensibly founded on the statute. In the Mersey Docks Trustees v. Gibbs, in which the judgment of the court of exchequer chamber was affirmed by the House of Lords, it was held that the principle pn which a private person, or a company is liable for damages occasioned by the neglect of servants, applies to a corporation which has been entrusted by statute to perform certain works, and to receive tolls for the use of those works, although those lolls, unlike the tolls received by the private person or the company, are not applicable to the use of the individual corporators, or to that of the corporation, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls themselves are to be proportionably diminished. Parnaby v. The Lancaster Canal Co. (supra) which was the case of an ordinary corporation, was approved of, and the principal of liability for negligence there established, was applied to a corporate body entrusted by statute with the performance of a public duty, and receiving therefrom no profits or emoluments for itself. And it was further held, that if knowledge of the existence of a cause of mischief makes persons responsible *for the injury it occasions, they will be equally responsible when, by their culpable negligence, its existence is not known to them. And in Pittsburgh v. Grier, it was among other things held ( Brack, C. J., delivering the opinion of the court), that a city being in possession of a public wharf within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition for use; that the corporation is liable for special injury sustained by an individual in consequence of its neglect to keep the wharf in order, and case may be sustained therefor; that it was not material whether the city had adopted ordinances for the regulation of the wharf, or having such, neglected to enforce them — the responsibility is the same in either event; and that when the plaintiff has sustained injury from the neglect of a public duty, which the defendant has impliedly promised to perform, either case or assumpsit may be maintained. In that case, a steamboat was landed at a moderate stage of water, at a proper place at the Monongahela wharf at Pittsburgh, on which piles of iron metal had been lying for a long time, and nearer to the water’s edge than was allowed by the ordinances of the city. The river afterwards rose, and the boat struck on the iron, and to avoid such danger was backed into the stream, where it was struck by a floating body, and further injured and sunk. It was held that the wharf, being under the exclusive control and regulation of the city authorities (whether 'Tighcfully or not, held not to be material), who derived a revenue from its use, the Wharfage of the boat having been paid, the city authorities having been guilty of negligence in not having the iron removed, the corporation was liable in an action on the case to the owners of the boat for the injury sustained; *that though some other place on the wharf might have been more secure, the captain of the boat had a right to select the one in question, which was at the time safe, the faith of the city being-pledged to render it secure; and that it was not material that the city authorities did not foresee the danger as likely to occur.

There are other sections of S. & R. on Negligence, which have a material bearing on this case, among which are §§ 130, 135 and 137. In § 120 it is stated, among other things, that “there is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances, as private corporations or individuals would be liable for in a civil action.” Many cases are referred to in the notes to that section, and among them is the case of Mersey Docks Trustees v. Gibbs, supra, of which there is a very full statement, the decision in which case was afterwards followed in Coe v. Wise, 1 Q. B. L. R. 711. In § 135, it is stated that “the rules of law governing the relation of master and servant, and principal and a.gent, are as applicable to corporations as to natural persons; and a municipal corporation is liable for the carelessness or neglect of' its agents, on the same principle that a natural person is liable for damages resulting from thd carelessness, unskillfulness or wrong doing of his agents. § 137 is to the same effect. Of course municipal corporations in the exercise of their political, discretionary and legislative authority, are not liable for the misconduct, negligence or omissions of the agents employed by them. But municipal corporations, in discharge of ministerial or specified duties, assumed in consideration of the privileges conferred by their charter, are liable for the misconduct, negligence or omissions of their agents; and this, *though there be the absence of special rewards or advantages. The distinction is so stated in The City of Richmond v. Long’s adm’rs, 17 Gratt. 375. The remarks just made by us, concerning the liability of a municipal corporation, apply only to cases arising under the second branch of the distinction, the principles of which are strongly applicable to a case in which a municipal corporation is a wharf owner, entitled as such to receive wharfage. See Dillion on Municipal Corporations, ch. 23, and notes.

We have examined the authorities referred do by the learned counsel for the city of Petersburg, to wit: Home v. Richards, 4 Call 441; Mayor v. Cunliff, 2 Comst. 165; Sh. & Red. on Negligence, §§ 123, 126, 147, 148 and 407; Wharton on Negligence, § 52; City of Richmond v. Long's adm’rs, 17 Gratt. 375; Fowle v. The Common Council of Alexandria, 3 Pet. R. 398; The City of Providence v. Clapp, 17 How. U. S. R. 161; Coe v. Wise, 5 Best & Smith (117 E. C. L. R.) 439; Weightman v. The Corporation of Washington, 1 Black’s R. 39; Mayor v. Sheffield, 4 Wall. U. S. R. 189; Withers v. The North Kent Railway Company, 3 Hurlst. & Nor. 969. But without stating the purport of these authorities, it is sufficient to say that we do not consider any of them to be in conflict with what we have stated, as in our opinion the law and the authorities cited by us in support thereof. None of the cases referred to by the counsel are cases of a wharf owner, receiving or entitled to receive wharfage; in which case the obligation of such owner to keep his wharf in repair, and to keep the water adjacent thereto free from obstruction, as before stated, seems to be well settled. And though in an action for negligence in such a case, the burden of proving such negligence, devolves, of course, on the plaintiff, yet proof of the existence of an obstruction *in such a case is, generally at least, prima facie evidence of such negligence.

That it is made the duty of the port warden to see that the navigation of the Appomattox river, in the city of Petersburg, is kept free from obstruction, and to attend to the duties of the city, in regard to the city wharf, can make no difference. The port warden in this matter is but the agent of the city, and a principal is always bound for the acts and neglects of his agent in the execution of the agency. The same rule on this subject, which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation, which can only act by an agent.

Nor can it make any difference that it has been made the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, under the acts passed December 8th, 1824 (acts 1823-’4, p. 45, ch. 48), and March 28th, 1851 (acts of 1850-’51, p. 72, ch. 91). It seems that the city is now in effect the Lower Appomattox company, owning all the stock of that company, and electing its directory,’which company, therefore, is a mere agency of the city. But even if it were a separate and independent organization, its obligation to perform a duty, which the city is also bound to perform, on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty. If so, a party affected by the neglect of such duty might be injured by this• substituted liability of the company.

Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged 'it. While such operations are beneficial to *the city, they do not relieve it from its common law liability in regard to the city wharf.

That no wharfage was actually received by the city in this case, and that it does not usually charge wharfage in such cases, can make no difference. It is sufficient that the city was fl entitled to make the charge, and that wharfage was due by the vessel owner. He could not know that no wharfage would be received by him. He came to the city with^ his vessel, laden with a cargo of coal consigned to merchants of the city, and not being able to go up at once to the wharf nearest his consignees, he moored his vessel to the city wharf, relying on the city for the safety of his vessel, expecting and intending of course to pay the legal wharfage.

_ The court is further of opinion that the circuit court did not err in overruling the demurrer to the fourth count of the declaration. Without setting out the substance of that count here, it is sufficient to say that it sets out a good cause of action, and is free from just ground of objection. The demurrer to the third count was sustained, and there was no demurrer to the first or second count.

The court is further of opinion, that the circuit court did not err in giving the six instructions asked for by the plaintiff; nor in refusing to give the first, second, third and fourth instructions asked for by the defendant; nor^ in giving the instruction which it gave of its own motion. These instructions, taken altogether, correctly expounded the law, and were not calculated to mislead the jury. (The court here read the instructions, and commented briefly upon them.)

The court is further of opinion, that the circuit court did not err in overruling the motion of the defendant to set aside the verdict and grant a new trial upon the ground that the verdict is contrary to the *law and the evidence in the cause. It is not necessary to decide whether the certificate is of evidence or of facts. Regarding it as a certificate of facts so far as it is possible so to regard it, and even viewing it most favorably for the defendant, still we think it fully sustains the verdict. The plaintiff’s vessel while lawfully lying at the city wharf, struck against a pile at the bottom of the river, about two and a half feet from the wharf, which penetrated the bottom of the vessel, and caused it to sink. It is probable from the certificate of facts, that the said pile was a part of the wharf, at least originally. Rut whether so or not it evidently had been there a long time. It was buried more than two feet in the sand, projected from a foot and a half to two feet above the bottom, and leaned from the direction of the wharf towards the opposite side of the river. There had been no dredging at that point, nor within two feet of the wharf, either by the defendant or by the Lower Appomattox company, or the United States, or any other agency. Due diligence on the part of the wharf owner.required that there should be such a dredging at reasonable intervals of time; for the existence of such an obstruction occasionally might reasonably have been expected, and the risk of injury to vessel owners who are invited to come to the wharf required the exercise of such diligence. Had there been such dredging during the year next preceding the injury complained of, the obstruction which occasioned it would no doubt have been discovered, and might have been removed in time to prevent the injury. In fact it could be seen from the surface of the water at low tide.

Upon the whole, we are of the opinion that there is no error in the judgment, and that it ought to be affirmed.

Judgment aeeirmed  