The daily gazette., 1874-12-08
PROCEEDINGS OF COURT.


THE CANAL COLLISION CAsE-JuDoE
wooTrEN's CHARGE TO THE JURY
OTHER BUSINESS.
Specially Reported for the Gazette.
NEW CASTLE Dec. 9 1874.
The Superior Court, Court Of the
General Sessions and Orphans Court
We're opened this morning alto o'clock,
Judges WOotten, Houston and Wales
on the bench.
In the case of Jefferson & Son ss.
Brady & Co., on trial for the past two
days, the following charge was deliver
ed by Judge Wootten:
GENTLEMEN OF THE JUIY:-Thls case
which you have been called and sworn
to try Is an action ON the case for the
recovery OF damages brought by VIM.
Il. Jefferson trading as E. Jefferson g.
Son, against George F. Brady, Henry
Brady, Samuel Brady and VIM. Brady
trading as George F. Brady and Com
pany.
1t appears that the plaintiffs had ship
ped on board the sloop Helen cargo
OF corn, being some sixteen hundred
and eight bushels, to be carried from
Bohemia through the canal to Delaware
City, that on the 25th day of March
1879, the sloop Helen commanded by
Captain VIM. Robinson was passing
through the canal and when approach
ing the the rail road bridge, the cap
tain saw a steam tug coming in the op-
poslte direction some distance of, vari-
ously estimated by the witnesses. He
blew a signal horn and gave other sig
mails, he passed through the draw of the
bridge, steered close into the tow.path
and grounded the sloop, telling his dri-
yer to hold up. The tug and two of
the barges, there being four in tow,
passed the sloop, and the third or fourth
barge struck her, breaking her bow
spirit and opening her bow nearly to
the keel, whereby she filled and sunk,
esulting as is alleged by the plaintiffs
in the loss and injury complained of
by them, for which they claim DANA
ges OF the owners of the tug towing the
four barges.
The plaintiffs contend that the dcfcn.
dants, who are admitted to be the own
ers of the tug, had the control and di-
rectiOn of the bargcs in tow of her, and
are responsible for the alleged injury
and loss occasioned by the collision OF
| the barge which collided with the sloop;
the injury and loss being, they say, the
result of negligence on the part of the
captain having command and direction
and control of tho tug.
| The defendants. resist the plaintiffs
claim for damages arising from the col
lision, denying that the commander OF
the tug had the control and direction
OF the barges being towed by,hcr, anf
insisting that they were under the con
troll and direction of the captains re
spectivcly commanding them, and thai
therefore the owner of the barge which
collidcd with the Helen is responsible
for any injury or loss which resulted
from the collision, I
The defendants also rely as matter o.
defense, upon what is called contribu.
tive negligence, that is, negligence anf
want of care, skill and diligence or
the part of Captain Robinson in Tho
command and management ofthe Helen,
which they say contributed to the dis,
aster by which the loss complained oil
| by tho plaintiffs was occasioned.
These arc questions of law and facts
the one for the consideration and judg
ment of the Court and the other TO Dc
determined by the jury.
Hero the important question arises
whether the owners OF the tug are the
Irresponsible parties or whether the liA
bility rests upon the owner of the barge
which collided with the Helen ant
| caused her TO sink. 1t Is important
| that the law in this respect be settlet
| that all persons interested in the mat
ter may know their rights and privi
legcs and their liabilities. Placing theil
adjudication of the law on the princi
plesof the common law Of principle and
agent it becomes important to know
which of these parties is to be consid
cred principal and which the agent.
| Now it seems to us that it would be
very unreasonable and hardship on
the business community who use this
navigation for the purposes of trade In
various commodities, to be compelled
to employ particular person to tow
their vessels and barges through the
canal who is not to be responsible fol
loss occasioned by their negligence,
and without having the privilege oi
contracting in reference to damages
occasioned by collision which might
result in great loss and damage to them
by the default and negligence Of the
party they were obliged to employ.
And the owners of vessels and barges
wishing to pass them through the ca.
nal are not only restricted as to the
person to be employed by them, but
are precluded from the privilege OF
contracting or stipulating as to liability
in the event of injury and loss by rea.
son of collision and negligence, whilst
they are bound to pay the rates of toll
fixed by others-in the case of the ca
nal by the President or Board of Di-
rcctors of tho company. In view OF
all the facts and the nature and char
acter of this peculiar mode of trans
portation, and there being no settled
rule Of law applicable to such cases.
the decisions in different States being
IN conflict in reference to the party
liable--it being held in Massachusetts
and New York that the tug is respon-
sible, and in Pennsylvania that the
vessel in tow is liable. Most of the
cases cited are in Admiralty, in which
there arc principles or propositions not
known to the common law. In those