#### Christian J. Burckle and Emanuel Burckle *versus*The New-York Dry-Dock Company.

No person can lay the foundation of an action against another, by a wrong on his part, or by a neglect or breach of his own duty.

The defendants were proprietors of a certain dry-dock, with a machine to raise vessels out of the water, for the purpose of cleaning and repairing their bottoms. The plaintiffs hired this machine, and placed a vessel upon it, under the direction of their own agents and workmen ; and in an attempt to burn off the tar from her bottom, the vessel took fire, and was much injured. An action being brought by the plaintiffs against the defendants for negligence on their part as to the manner in which the machine was kept, and for its improper construction in a certain particular, the defendants proved that the injury to the vessel was occasioned by carelessness and neglect on the part of the plaintifis in the use of the machino. The Judge charged the jury, that if the injury were attributable to carelessness, or want of common precaution on the part of the *plain*tiffs, in the use of the machine, the defendants were not liable; and the jury having returned a verdict for the defendants, a new trial was denied.

This was an action on the case for injury sustained by a vessel belonging to the plaintifis, while on a rail-way, or inclined plane belonging to the defendants, for repairs.

The declaration contained two counts. The first set forth that the plaintiffs, on the first day of May, 1827, were the owners of a brig called the Eagle, and that the defendants were the owners of a certain dry-dock or rail-way, “ intended and held out by them “ for the receiving and repairing of ships and vessels, which they “ were bound to keep in good order and repair, and in a state and “ condition suited to the purposes aforesaid.” That the defendants “ hired the same to the plaintiffs for a certain reward,” “ to “ receive the said brig for the purpose of repairing the same, yet, “ the defendants not regarding,” &c., “kept the said dry-dock or “ rail-way in a state and condition so unsuitable to the purposes of “ repairing ships or vessels,” “ that, by reason thereof, and of “ great quantities of combustible materials, which they” “ had *152“carelessly, and negligently, and contrary to their duty as afore- “ said, allowed to accumulate and attach to the said dry-dock or “ rail-way,” the said brig, in the course of her repairs, through the unsuitable condition of said rail-way, took fire, and wa*s*greatly injured, &c.

The second count alleged, *that the*defendants received the plaintiffs’ vessel on their rail-way for repairs, but “ so negligently “ and carelessly *managed*their said rail-way, or dry-dock, that the “ *same,*by and through the *carelessness and mismanagement*of the “ defendants,” *“ took fire,*whereby, and *by means of the defective*“ *construction of said dry-dock,*or rail-way,” the said brig was greatly injured, &c.

The defendants pleaded the general issue, and the cause was tried before Mr. Justice Oaklev.

At the trial, it appeared that the dry-dock or rail-way referred to, was a machine by which vessels are drawn out of the water upon an inclined plane, for the purpose of cleaning, graving, and repairing their bottoms. It consists of a cradle, which, after receiving the vessel, is drawn up the inclined plane with the vessel upon it, to a given distance out of the water, on ways prepared for that purpose. When the vessel is thus drawn up, the cradle is secured by palls, which fall into certain grooves in the ways, at the bow and stern of the vessel, by which she is fixed in her place. When the repairs are finished, the palls are raised, and the cradle, with the vessel upon it, glides down the inclined plane until the vessel meets and is buoyed up by the' water.

It also appeared by the testimony of one Leslie, whom the plaintiffs called as a witness, that he had been employed by the defendants early in March, 1827, to examine the dock, and state any objections, which might exist in regard to it. The witness found a quantity of combustible matter beneath the cradle, consisting of tar, pitch, and oakum, the remains of the graving and repairing of vessels, which had been allowed to accumulate gradually there. This combustible matter extended the whole length of the under surface of the cradle, and the witness considering it as dangerous, recommended that the whole space under the cradle should be covered over with earth. He made the same rep-*153presentation to the defendants afterwards repeatedly, but no notice was taken of his caution. The witness also observed that the patois' were secured by ropes, and he told the President, that they were unsafe,—stating that in case of fire, the ropes would be destroyed, and the pawls fixed in their grooves, so that the cradle and vessel could not be launched into the water. He therefore recommended, that *chains*should be used instead of *ropes,*for the purpose of raising the pawls. To these representations the President replied, “the men must be the more careful.” Leslie also recommended, that the sleepers of the cradle should be covered with a preparation of lime; and on one. occasion, he represented the danger to two of the directors of the Company, who having spoken to the President in relation to it, were answered, that there was no danger, and that the Company were insured. The President, however, suggested, that buckets should be made ready in case of five, but the witness thought they would be useless. The witness further stated, that he suggested various other precautions, which being disregarded, he left the employment of the'defendants, eight days before the injury complained of in the declaration, in order to avoid the responsibility of such an accident. After the witness had left the Company’s employment, the President seemed disposed to adopt his precautions, and wished him to speak to the defendants upon the subject. Nothing, however, was clone to avoid the danger.

Tire witness also stated, that the bottoms of several vessels had been burned oif, while upon the cradle, without any injury from the fire. When the flames were too vehement, they were subdued by brooms prepared for that purpose. After the accident happened to the brig Eagle, chains were attached to the pawls instead of ropes, and the bottom of the cradle, where the combustible matter collects, was covered with sand.

The plaintiffs called several witnesses, from whose testimony it appeared, that the plaintiffs were the owners of the brig Eagle, describedin the declaration; that she was a new vessel, which had been launched a few weeks before the accident, and her bottom payed. The plaintiffs being anxious to have her coppered expeditiously, had hired the defendants’ rail-way, and *employed their own (plaintiffs’)*
      *154
      *men to do the work,*it being the sole duty oí the defendants to raise the vessel out of the water, and to .return her there again. The whole of the. premises were open to the inspection of the plaintiffs their agents, and the combustible materials collected were visible to all the workmen. It further appeared, that previously to the coppering of the vessel; it was necessary to have her *graved,*and for this purpose empty tar-barrels were prepared, which being sawed asunder, and placed under the parts to be burned, were set on fire, and the flames thus communicated to the vessel’s bottom. When this process is resorted to, buckets and brooms are prepared, that in case of accident from the fire, or if the flames are too great, the fire may be reduced or extinguished, From the testimony. of these witnesses, it also appeared, that the burning of this vessel was conducted in the usual manner; but when the fire was communicated to the tar upon her bottom, a part of it dropped upon the combustible matter below, which being thus set on fire, instantly blazed up about the vessel, drove the workmen from the rail-way, and resisted all efforts for its extinguishment, until after the combustible matter was. totally consumed.

It also further appeared that the ropes attached to the pawls were burnt off, by which' means the cradle became fixed in such a manner, that it could not be launched : if, however, the pawls had been secured by chains, the witnesses were of opinion, that the cradle with the vessel upon it might have been launched .into the. water within *two minutes,*and the fire "thus .extinguished. - The injury to the "vessel exceeded two thousand dollars, and the plaintiffs were compelled to repair her at their .own expense.

The defendants, on their part, called several witnesses!» show that the fire w.as communicated to the vessel and the combustible materials entirely by the carelessness of the agents and workmen of the plaintiffs, especially by the haste and obstinacy of. the master of the Eagle. That before any vessel’s bottom can be safely burned upon the rail-way, it is necessary to prepare brooms and pails of water, that in casé of too much flame, its progress may be *instantly*arrested. That in this case, the master of the Eagle took upon, himself to direct the operations, and although warned repeatedly against the consequences, he caused fire to be applied *155to the vessel’s bottom before either brooms or buckets were prepared. That by this means.the fire had made such progress before any attempts could be made to arrest it, that it became impossible to extinguish the flames before the injury was done. The witnesses also testified, that if brooms and water had been prepared, the evil might have been prevented, but that the vessel’s bottom was not in a safe state to be burned, as she had been recently payed. Upon these points, however, the testimony was contradictory, the weight of it being with the defendants. •

Upon these facts, the Judge charged the jury, that it might well be doubled whether the defendants were liable for any injury sustained by the plaintiffs, in consequence of the alleged insecure situation of the rail-way, as every body was free to use it,, or not, it being open to inspection in all its parts. For the purposes of this trial, however, he charged the jury, that the defendants were liable for all damage resulting from their neglect to keep the rail-way in a secure situation, *unless the injury arose from, the negligence of those, who used it.*That they were not, however, bound to keep it in such a state as to guard against hazard arising from the negligence of the plaintiffs or their agents. If, therefore, the jury believed, that the persons employed about the vessel did not act with ordinary prudence, and use the common and usual precautions against fire, or if the vessel was not in a situation to be safely graved, or was exposed to unusual hazard from the state of her bottom, that then the defendants were not liable.

The jury returned a verdict in favour of the defendants.

*Mr. J. Anthon,*for the plaintiffs,

now moved for a new trial, and contended, that under the first count, the Judge ought to have charged the jury, that the defendants were liable for the injury sustained by the plaintiffs, if there was such negligence on the part of the defendants as was charged in that count, and if damage ensued therefrom to the plaintiffs. That the whole body of the evidence showed conclusively, that this negligence did exist; that it exposed vessels to great danger, and required more than ordinary care on the part of those engaged in graving them. That the Company had notice of the danger, and were warned against *156it, and that such danger actually proceeded from this source. *[Mahew v. Borie,*1 *Stark. R.*423. *Clay v. Weed,*5 *Esp. R.*44.]

' The second count, besides the averments of negligence, contained an additional averment of a defective construction of the rail-way, and ascribed the damage to *both*causes; the negligent accumulation of the combustible materials and the defective construction also. On this count, the Judge should have charged the jury, that if the rail-way was defectively constructed, and any danger proceeded from that source, they ought to find for the plaintiffs. He contended that the evidence clearly showed defects in the construction, and proved, that if chains had been used in the place of ropes, the pawls might have been raised, and the vessel launched info the water. Upon this point, the defendants were expressly warned, and having neglected to remedy the defect until after the injury had been done, they were liable to the plaintiffs.

That if these matters did not form a cause of action, as set forth in the declaration, the defendants ought to have demurred. But having joined issue upon them, the plaintiffs were entitled to a specific finding on the facts under the charge of the Judge: *valeat quantum valere.*If such negligence and mal-construction existed on the part of the defendants, want of due precaution on the part of the plaintiffs would never release the defendants from their liabilities.

III. On the whole case, the weight of evidence showed, that the injury proceeded from the combustible materials collected below the cradle, the burning of which produced the injury complained of. The Judge erred, therefore, in not charging specifically on the case as stated in the declaration, and secondly, in charging, that carelessness on the part of the plaintiffs, *neutralized,,*in effect, the negligence of the defendants, and relieved them from the liability attaching to them, from the unfit condition, and defective construction of the rail-way. *[Townsend v. Sus. Turnp. Co.*6 *John. R.*90.]

*157IV. As the Dry Dock Company enjoy privileges by public grant, on the condition of having proper rail-ways, all rules are to be inte;preted strictly against them for the benefit of the community.

V. The verdict was against the evidence.

As to the general question, Mr. Anthon contended, that in all cases where one person holds out to another his power and ability to do or perform any tiling fora reward, he is liable for negligence and unskilfulness. He said, that our lav/ upon the subject was borrowed from the civil law, and that, he, who lets a carriage or machine, warrants against all defects. So he, who hires out casks, which are defective, is liable by the civil law for the consequences; and if one let a pasture having poisonous herbs therein, he would be liable by the same law, for the injury they might occasion. This is also our law of bailment in one of its branches, ([locatum,) as appears from Jones on Bailment, (page *49,)*and *Coggs v. Barnard, Ld. Ray,*902. [He cited also, *Pandects, Lib.*19, *ti. 2, Law*19, *sec.*1, *(si quis dolia.) Nap. Civ. Code, B. 3, tit. 8, chap. 2, sec.*1721, *(page*198 *of trans.) Pothier, vol. 2,*65 *to*72.]

*Mr. Jay*and *Mr. Baldwin,*for the defendants *contra,*contended,

that the cases cited on the other side did not apply. That inthis case, there was no special agreement whatever. The dock was open to the inspection of all persons desirous of hiring it; and the defendants let it out to the plaintiffs in its actual condition, without warranty of any kind. The plaintiffs and their agents knew and understood the actual condition of the rail-way, and were aware of all the precautions necessary for its use. The *pawls*were exposed to view, and the plaintiffs were aware, when they hired the rail-way, that the pawls were secui ed by ropes. They knew the hazard originating from fire, and were aware, that the ropes were liable to be destined. The defendants are not bound by their *charter*to keep the dock in repair, and they have no monopoly. There are other rail-ways in New-York, and the defendants may, if they choose, allow their’s to sink into decay. The defendants, in fact, undertake nothing ; they exhibit their dock, and allow all parties to use *158it, who choose to pay the hire, and take the consequences. Here the plaintiffs employed their own agents and workmen, and the jury have found, that the accident proceeded entirely from the neghgence of the plaintiffs and their agents.

Upon this point, the charge of the Judge was altogether too favourable to the plaintiffs, .and they cannot have a new trial from any error in the *charge.*If there be cause of complaint any where, it is *with the*defendants.

A party, who uses a machine of any sort, must adopt ordinary care and precaution in its use, or he cannot complain of defects ; and this is a principle of common sense as well as of law. *[Butterfield v. Forrester,*11 *East. 60. Esp.*N. *P. 218,*(599, *old ed.)*1 *Cowen*18, *(Bush*v. *Brainard.)*1 *Ventris,*310. *Com. Dig. action on the case, B.*4.]

There was no objection at the trial, as to the charge in relation to the admission of the evidence of negligence, on the part of the plaintiffs. They are too late, therefore) to complain, even if there was a cause of complaint. But there was no negligence in fact, as it was clearly proved, that the injury received by the Eagle might have been prevented by the plaintiffs, with ordinary care, and would never have occurred, but for gross negligence on their part. There is no reason, therefore, for a new trial, as the charge was favourable to the plaintiffs, and the jury found according to the evidence.

Hoffman J.

It appears from the evidence presented by the case, that when fire is about to be applied to a ship’s bottom, water and brooms are usually provided, to guard against accidents; and that with these precautions a vessel may be safely graved. The plaintiffs, although warned that there would be hazard, unless such care was taken, having neglected all the usual precautions, cannot found an action for damages upon their own negligence.

The rule of the civil law, I apprehend, does not sustain the counsel for the plaintiffs in the position he has taken ; because from the testimony it clearly appears, that they have suffered entirely from *their own*carelessness and want of caution,—even if there was *some*negligence on the part of the defendants. In *159order to lay the foundation of an action against the *defendants*for a negligence of this kind, the neglect complained of, must be the *cause*of the plaintiff’s loss. But in this case there is no evidence to sustain the principle, upon which the action rests. I see no error in the charge of the Judge, and am satisfied, that the motion for a new trial must be denied.

But as the second count of the plaintiffs’ declaration charges upon the defendants a mal-construction of a part of the machine, which they let to the plaintiffs, it may not be improper to ascertain, whether there is any just cause of complaint from that source. The *pawls*attached to the cradle, it seems, were secured by ropes; and the plaintiffs insist, that these pawls should have been secured by *chains.*But it seems to me, that the defendants were hardly bound to take such a precaution, since they could not have anticipated a fire, which should extend to the cradle. But if this was a defect in the machine, it was an *apparent*one, and open to the plaintiffs. If they thought the rail-way insecure, they were not bound to use it; and the defendants in my view of the case warranted nothing connected with their rail-way. A commission merchant is not bound to store his goods in a fire-proof building, although they would be much safer there than in a wooden warehouse. The law leaves the owner to effect insurance in such cases, and imposes no obligation on the commission-merchant, to seek a place of storage, which is absolutely secure.

In this case, although the rail-way would have been safer, if the pawls had been secured by chains instead of ropes; still the defendants were not bound to provide chains,—since the plaintiffs were at liberty to exercise their own judgments, as to the safety of the machine.

Suppose the defendants had persisted in the use of ropes, after the accident took place; could their customers complain of this resolution'? They have the option to use the machine or not to use it, as they may think proper, and they must rely upon their judgments as to its safety. It is true the ropes were burnt, and by that means the plaintiffs were deprived of the power of launching the cradle and vessel into the water: but it must be remembered, that the ropes were destroyed by a fire originating in the *160plaintiffs’ negligence. The injury did not in fact proceed from any defect in the machine, but from want of caution on the part of the plaintiffs, and they cannot, therefore, sustain their action.

In my view of the subject, the charge of the Judge was correct ; and I do not think, that the jury have found against the weight of the evidence under the charge. On the contrary, the proof was strong to charge the plaintiffs with gross negligence on their part; although it is evident, that there was some cause of complaint, as to the situation of the rail-way, in relation to the accumulation of combustible materials under the cradle. Upon the whole view of the case, I am clear, that this action cannot be sustained, and that the motion for a new trial must, therefore, be denied.

Oakley J.

The defendantswere proprietors of a certain dry-dock or rail-way, with a machine for raising vessels out of the water, for the purpose of cleaning and repairing them. Theplaintiffs hired the machine, and placed their brig Eagle upon it, under the direction of their own agents and workmen ; and in the attempt to burn off the tar from her bottom, she took fire, and was much injured; They have brought this special action on the case against the defendants for damages; and they rest their right of recovery on two grounds t 1st, that the defendants had negligently suffered a quantity of combustible materials to accumulate under the machine, by means of which the fire originated and was communicated to the vessel; and 2dly, that the machine itself was insecurely and improperly constructed, so that the plaintiffs were unable to rescue the vessel from the fire; by launching her into the water.

The defence was, that the fire originated from the carelessness and negligence of the *plaintiffs,*and from their omitting to use the ordinary precautions, in such cases, against fire. The Judge charged the Jury that the defendants were not liable, if the injury arose from the negligence of the *plaintiffs*or their agents; and that they were not bound to put their machine in a state to guard against hazard, arising from the want of ordinary care on the part of those who used it; and under this charge, the jury found a verdict for the defendants. The plaintiffs now move for a new trial, on the ground that the Judge misdirected the jury.

*161Assuming that the defendants would, under any circumstances, be liable for injury, sustained by vessels, while repairing under the superintendence of their owners, I think it quite clear, upon general principles, that no action can be sustained, where the plaintif*f*s have been guilty of negligence m managing their own property, and have thus in fact caused the very injury, of which they complain. No man can lay the foundation of an action against another by his own wrong, or by the breach of any duty on his part. This is the dictate of common justice as well as of common sense. The defendants in the' present case, to say the most, were only bound to keep their machine in a situation capable of being safely used, for the purposes for which it was intended, by those, who should manage it with ordinary care. They cannot be held to warrant the plaintiffs against the consequences of their own rashness.

In the case of *Bush v. Brainard*[1 *Cowen*78] the principles above laid down are fully recognized. The Chief Justice says, “ it is necessary to inquire, not only whether the defendant has “ been guilty of culpable negligence on his part, but whether “the plaintiff is free from a similar charge.” The cases of *Blythe v. Topham. (Cro. James*158.) and *Butterfield v.*Forrester, (11 *East.*60.) go upon the same principle.

I do not think it necessary to pursue the subject further. It seems too plain for any question.

It was contended also on the argument that the verdict was against the weight of evidence, as to the alleged negligence of the plaintiffs agents, and the cause of the fire. I think otherwise. The evidence, detailed in the case, is very strong to show gross carelessness, and even rashness on their part, and it fully warrants in my judgment the conclusion, which the jury drew from it.

*Motion for a new trial denied.*

[E. Anthon, *Att’y for the plffs.*Hallott and Walker, *Att'y for the defts.]*