Vroman v. Rogers

than as represented, and by the unsafe condition of the ground beneath it. The barge was one hundred and sixty feet in length and thirty feet in width And there was evidence tending to prove that the surface of the ground under the vessel sloped <down outward from the dock so that at' twelve or fifteen feet from it the water was in depth six feet greater than it was four feet from the dock. It is claimed. that the low tide at the tiüie in question caused the side of the boat near the dock to rest upon the bottom, and by reason of the slope of the ground, as before mentioned, the boat broke away from its fastenings and turned over, producing the injury and loss complained of. And there was evidence tending to prove that such may have been the ■cause, although that was a question of fact for the jury, and was submitted to them.

The court having instructed the jury that if they found that the bottom of the slip was defective or in unsafe condition, and that it was the cause of the plaintiffs’ loss, the further questions for them to determine were whether the defendant was chargeable with negligence and the plaintiffs free from contributory negligence, as upon the finding of the former in the affirmative and the latter in the negative the plaintiffs’ right to recover was dependent, the plaintiffs’ counsel requested the court to charge the jury that “If the defendant made the statement that this place was all right, the plaintiffs had the right to rely on that statement.” The court thereupon remarked that the jury might •consider that on the question of negligence and give it such weight as they thought proper, and declined to charge that the plaintiffs had the right to rely on the statement that the place was ■all right or that it relieved them from the necessity of making personal examination. And upqn the exception to such refusal ■arises the main question requiring consideration. There was some evidence tending to support the fact that such statement was made to the plaintiffs before they took the wharf. And it is urged by the plaintiffs that the liability of the defendant was not ■dependent'upon negligence, but that upon the finding of that fact by the jury the right to recover would necessarily follow as for breach of contract, if the slip was not all right and the injury was in consequence of such condition. There was in terms no undertaking to indemnify or protect the plaintiffs against loss by reason of any condition at the wharf or in the bed beneath the water there. The defendant was not asked to do that. What was said by him on the subject was in its nature a representation, and if made in good faith he could be charged with liability as for negligence only. The defendant having and assuming to maintain the dock and slip to supply wharfage of vessels for hire, was bound to keep them in suitable condition for the purpose, and for any injury or loss resulting to persons properly using them occasioned by his failure'to perform his duty in that respect, he was chargeable with negligence and liability. Leary v. Woodruff, 4 Hun, 99 ; 76 N. Y., 617 ; Barber v. Abendroth, 102 id., 406; 2 St. Rep., 432 ; Carleton v. Franconia Iron Co., 99 Mass., 216 . This duty of a wharfinger requires of him diligence to give

safety to the use of the wharf and its harbor by his patrons, while upon them is imposed ordinary care. And assuming that assurance was given by the defendant to the plaintiffs that the place where the barge was moored was in suitable condition and all right, they were at liberty to assume it to be so, and were justified without, imputation of negligence on their part to put their vessel there without personal examination, beyond what was obvious, to ascertain whether or not it was suitable for their use provided they correctly represented to the defendant the character of their vessel and the depth of water requisite for it. And if they suffered loss by reason of a defective condition of the wharf or slip before they had opportunity or reason to observe or apprehend it, and which condition the defendant knew existed or by proper diligence may have ascertained, he was chargeable with the consequences. But the plaintiffs’ barge remained there ten days before the injury, and in the meantime it had at low tide rested on the ground, of which the plaintiffs were advised. The inference was justified that it could then be easily ascertained whether at its particular location, as tied to the dock, the ground beneath it was or not suitable for it to rest upon. And it was in reference to the knowledge and the means of observation during the time the boat was at the dock that the ruling was made upon the request to charge and the question of contributory negligence submitted to the jury. In that view it is not seen that the court was in error. The dock was over one thousand feet in length, and along it farther down than the place where the barge was located, the water was deeper. And as bearing upon the question presented at the trial there was evidence on the part of the plaintiffs that their employee, who took the vessel to the dock, informed the defendant’s superintendent before it was anchored there that it drew six feet of water. There was also evidence tending to prove that the water near the dock at that place was at low tide of that and greater depth. And the inference was permitted that the designation of that place as suitable for the vessel was made by such superintendent in view of the information so received of the depth of water -requisite to-float it, and that if no more than as so represented had been required the place may have been suitable for the wharfage sought by the plaintiffs, and the injury may not have been suffered. Thus was also presented by the, evidence a question of fact not-observed in the proposition which the court was requested to charge, and which so qualified the plaintiffs’ right to have such-proposition submitted to the jury as to support the refusal to-charge it as matter of law.

There was no error in the ruling; and no exception was well taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.