Carleton v. Franconia Iron & Steel Co. , 99 Mass. 216 ( 1868 )

Gray, J.

The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of. The general principle has been so fully discussed in the recent judgments of this court in Sweeny v. Old Colony & Newport Railroad Co. 10 Allen, 368, and Elliott v. Pray, Ib. 378, that but two or three additional cases need be cited by way of illustration.

In Wendell v. Baxter, 12 Gray, 494, the proprietors of a wharf, established for the use of the public, were held to be liable for an injury resulting from a defect in its surface, whether occasioned by the action of the sea or by other causes, which they by the exercise of ordinary care and diligence could huve provided against, to a person rightfully on the wharf with his horse and cart for the purpose of carrying mail bags from a steamboat to the post-office. In Parnaby v. Lancaster Canal Co. 11 Ad. & EL 223, the courts of queen’s bench and exchequer chamber held that the proprietors of a canal, authorized by law to keep it in repair and to take tolls thereon, were liable at common law for an injury occasioned to a boat, navigating the canal, by striking against another boat, which had sunk in the canal, and which they had negligently omitted to raise, or to indicate the position of by appropriate signals. S. C. 3 N. & P. 523, and 3 P. & D. 162. So a corporation, authorized to repair certain docks and to receive tolls for the benefit of the public, was held by the exchequer chamber and the house of lords to be responsible for an injury suffered by a vessel, entering one of the docks, by coming in contact with a bank of mud which it had negligently permitted to accumulate at and about the entrance. Gibbs v. Trustees of Liverpool Docks, 3 H. & N. 164. S. C. nom. Mersey Docks Trustees v. Gibbs, 11 H. L. Gas. 687, and Law Rep. 1 H. L. 93. In the judgment of the exchequer chamber in the last case, it was said that, even if the defendants, knowing of the danger, were not bound to remove it, they ought at all events to have closed the dock to the public, and had no right, with a knowledge of its dangerous condition, to keep it open and to invite the vessel in question into the peril which they knew it must encounter, by continuing to hold out to the public that any ship, on payment of the tolls to them, might enter and navigate the dock. 3 H. & N. 176. See also Indermaur v. Dames, Law Rep. 1 C. P. 274; S. C. 2 Ib. 311; Thompson v. North Eastern Railway Co. 2 Best & Smith, 106.

The report in this case finds that the defendants built, owned and occupied a wharf extending below low water mark into public navigable waters, and excavated and used a dock in front of the same as a berth for vessels, bringing cargoes of iron and coal to their works on and adjoining the wharf, to lie at and discharge ; that there was and always had been, within the line of this excavation, and in front of a part of the wharf which was to all appearance suitable for vessels to lie at when discharging their cargoes, a large rock, concealed under the water and dangerous to such vessels, the existence and dangerous nature of which were known to the defendants, but not to the plaintiffs ; that the plaintiffs’ vessel came to the wharf by procurement of the defendants, bringing a cargo of iron to them under a verbal charter between the parties, and, while lying at this part of the wharf, settled down with the ebb of the tide upon the rock, without any negligence of the plaintiS’s or of any one employed by them, and was broken in and bilged.

It does not indeed appear that the defendants owned the soil of the dock in which the rock was imbedded; but they had excavated the dock for the purpose of accommodating vessels bringing cargoes to their wharf; and such vessels were accustomed to occupy it, and could not discharge at that point of the wharf without doing so. It is immaterial in this case whether the danger had been created or increased by the excavation made by the defendants, or had always existed, if they, knowing of its existence, neglected to remove it or to warn those transacting business with them against it. Even if the wharf was not public but private, and the defendants had no title in the dock, and the concealed and dangerous obstacle was not created by them or by any human agency, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners or their agents or servants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe. This case cannot be distinguished in principle from that of the owner of land adjoining a highway, who, knowing that there was a large rock or a deep pit between the travelled part of the highway and his own gate, should tell a carrier, bringing goods to his house at night, to drive in, without warning him of the defect, and who would be equally liable for an injury sustained in acting upon his invitation, whether he did or did not own the soil under the highway.

This view being conclusive of the defendants’ liatflty, it is unnecessary to consider whether the stevedore who placed the vessel in this berth was the agent of the plaintiffs or of the defendants. Judgment for the plaintiffs.