#### Lackawanna Steel Company, Plaintiff, *v.*The Pioneer Steamship Company and The Hand & Johnson Tug Line, Defendants.

(Supreme Court, Erie Trial Term,

September, 1910.)

Wharves — Liability of wharfinger for injuries to property — Contributory negligence.

It is the duty of a wharfinger to use reasonable and ordinary care to keep his wharf or dock in such a state as to be reasonably safe for use by vessels which he invites to it or for whose use he holds it out.

Where a vessel being moved from plaintiff's dock collided with a coal uuloader whose girder extended fourteen inches beyond the dock lino and overturned it, causing damages, in an action to *105recover snob damages, it is no error for the court to submit to the jury the question of plaintiff’s contributory negligence and to charge them that, if the overhang was so constructed that it was not likely to have been seen by careful, prudent persons — a careful, prudent navigator — and damage resulting from a collision of a part of a vessel with it was not apparent and the jury could not-say from the evidence that the officers of the vessel could not have been expected to have seen it under the circumstances or to have known of it by the exercise of ordinary care on their part, there was contributory negligence on plaintiff’s part; but if the projection was of such character that in the exercise of ordinary care in the parUenlars staled the officers would have discovered that it would be dangerous by reason of the extended girder to move the vessel as she moved along the dock that night, then the plaintiff was not guilty of contributory negligence.

Motion by plaintiff for a new trial upon the court’s minutes after a verdict of no cause of action.

Louis L. Babcock & Evan Hollister, for plaintiff.

George Clinton & S. H. Holding, for defendants.

Brown, J.

The defendant’s steamboat, • while being moved from plaintiff’s dock, collided with plaintiff’s ore unloader, which was standing on the dock, overturning the nnloader and causing the damages complained of. The outer end of the principal girder of the unloader extended over the dock line fourteen inches, and the forecastle bulwarks of the steamer collided with this extension as the steamer was moved along the dock. The .case was submitted to-the jury upon the theory that the question as to whether the .plaintiff was guilty of contributory negligence in constructing and maintaining its ore unloader with fourteen inches overhang over the dock line was for the jury. The jury were charged that, if the fourteen inches overhang *“*was so constructed that it was not likely to have been seen by careful, prudent persons — a careful, prudent navigator — and damage resulting from a collision of a part of a vessel with it ivas not apparent, and you can say from the evidence that *106the officers of the steamer could not have been expected to have seen it under the circumstances, or to have known of it by the exercise of ordinary care on their part,” then there was contributory negligence on the part of the plaintiff; but if “the projection was of such a character that, in the exercise of ordinary care in the particulars that I have stated, the officers of the steamer would have discovered that it would he dangerous by reason of this extended girder to move the steamer as she moved along the dock that night, then the .plaintiff was not guilty of contributory negligence.” This charge is now claimed by the plaintiff to have been erroneous; and, while no exception was taken upon the trial, the plaintiff invokes the benefit of the rule that the trial court is charged with the duty of granting a new trial in .the absence of an exception when the case has been submitted to a jury upon an erroneous theory: the' contention of the plaintiff being that as a matter of law the plaintiff could not be held guilty of contributory negligence ; that it had a right to construct and maintain its ore unloader with the overhang of fourteen inches; that the defendants were hound to take notice of its actual condition, and that plaintiff was not called upon to notify defendants of 'any overhang beyond the dock line; that the overhang had been maintained in its then actual condition for years; that the dock was plaintiff’s private property and that it had a right to maintain the overhang, of which all boats using the dock were bound to take notice. Such contention cannot be upheld. It has been held by every available authority to be the duty of a wharfinger to use reasonable and ordinary care to keep his wharf or dock in such a state as to he reasonably safe for use by vessels which he invites to it or for whose use he holds it out. If he fails to use reasonable care — if there is a defect or condition known to him, or which by the use of ordinary care and diligence should be known to him — he is guilty of negli-. gence and liable to the persons who, using care, are injured thereby. He is bound to exercise reasonable diligence in ascertaining the condition of the wharf, the dock and its appurtenances and, if there is any dangerous obstruction, *107to remove it or to give due notice of its existence to vessels using the wharf. While it is true that these obligations of a wharfinger have been established in actions'against him by owners of vessels for injuries received, yet it must be assumed that the same degree of care measures the extent of his duty when he is seeking to recover for injuries to his wharf or its appurtenances, inflicted by a negligently maneuvered vessel. Such being tbe obligations of the plaintiff in maintaining its dock, it is difficult to see why the question whether the overhanging end of the girder over the dock line was rightfully in place was not exclusively for the jury’s determination. It was within the space devoted to the use of boats; that is, it hung out over the water; it was where it would likely he hit by a boat high enough to reach it; it was in fact hit by the steamer while the steamer and all its parts were on its side of the dock line; the point of collision was seven inches from its end and seven inches from dock line. It became important to know whether it was wrongfully or rightfully in place. It was rightfully in place provided it could have been discovered by the exercise of ordinary care by the steamer’s officers; it was wrongfully in place provided such care on the part of the officers could not have discovered it. If it was so constructed and placed that ordinary care on the part of the defendants could not have discovered it, it then became the proximate cause of the condition and plaintiff became chargeable with contributory negligence, irrespective of the question of how long it had been maintained.

It necessarily follows that the jury was correctly charged that the plaintiff would not he guilty of contributory negligence if, by the exercise of proper care on the part of the defendants, the overhanging girder could have been discovered, and that the plaintiff could not recover provided the overhanging girder could not have been discovered by such' care.

There was much testimony hearing upon the question whether the defendants used any care to ascertain the condition and location of the girder over the dock line, and from such testimony it became a question of fact for the *108jury to determine whether the defendants ought to have known of this overhang and avoided it. The weight of the evidence on 'this question does not seem to indicate that the jury was not warranted in rendering the verdict.

Motion denied.