GOLDTHWAITE, J.
— The first question is upon the^action of the court in refusing to set aside the declaration. • The attachment was issued under the act of 17th January, 1844, (Acts 1843-4, 98,) and directs the sheriff to seize and take possession of the steamboat Farmer, with her tackle, apparel, and furniture, and to keép and retain the same in his possession, to answer to the judgment which may be rendered, unless the master, owner, or some other person for then;, enter into bond, &c. The first count of the declaration “ complains of Edward W. Shields, Jacob B. Walker, and Daniel Walker, claimants and owners of the steamboat called the Farmer”; and alleges that they had the care, direction and management of the same, and that by the carelessness and misdirection of [202]*202“ said defendants in the management of said steamboat, she ran into the flat,” &c. The second count differs from the first, only in alleging that “ the said Shields, as commander and captain, had the care and management of the steamboat, and that the flat was run into by his carelessness and misdirection.” We have referred particularly to the declaration, in order to show that it is against the parties named therein, as defendants, and not the boat itself; and this being the case, it falls directly within the decision of this court in Otis v. Thorn, 18 Ala. 395, where the attachment was issued against a steamboat under the same statute, and the declaration was against two of the obligors in the replevy bond as owners. The defendants moved the court to set aside the declaration, which was refused, and the correctness of the action of the court in this respect was the question on error. It was held, that the declaration must be against the boat itself, and not the owners; and that the refusal of the court to set aside the declaration, was a reversible error. It is supposed, however, by the counsel for the appellees, that the fact that the defendants are admitted by the affidavit, on which the attachment issued, to be the owners of the steamboat, and by the attachment bond, which is payable to them as such, takes the case at bar out of the influence of the decision to which we have referred. But we do not think so. The ground on which it rests is, that the act of 1844 gave the remedy against the boat alone, and, although persons interested as owners would have the right to intervene and defend, the declaration must be, in conformity with the process and object of the statute, against the boat, and not its owners. There is no difficulty in framing a declaration to meet this decision. It should complain of the boat itself, and allege the injwry to have been done by it, through the carelessness and negligence of those having its direction and management. It would be unnecessary, in view of the purpose of the statute, and the judicial construction it has received, to state the names of the persons whose carelessness caused the vessel to commit the injury, although the naming of them would not be objectionable. Any of the owners would have the'right to come in and defend the suit j and, by analogy to the practice in admiralty, this should be done by application to the court, stating that the applicant is [203]*203interested in the steamboat seized, as owner, and should be sworn to by Mm if within the State, and not at an inconvenient distance, — otherwise, by his agent (The Adeline, 9 Cranch 244; Dunlap’s Ad. Pr. 161-2); and an entry should be made upon the minutes of the court, admitting him to defend as owner.
As the proceedings, except so far as they are varied by the statute, must be governed by .the rules of the common law, any facts which would defeat the action, had it been brought in case against the owners, will have the same effect when pleaded to this proceeding against the boat. The general rule of the common law unquestionably is, that if both vessels are to blame, neither can recover.—Vanderplank v. Miller, 1 M. & M. 169; Verrall v. Garner, 1 Cromp. & Mees. 21; Lack v. Seward, 4 C. & P. 106; Luxford v. Large, 5 ib. 421; Woolf v. Beard, 8 ib. 373; Kent v. Elstob, 3 East 18 ; Ken-nard v. Burton, 25 Maine 39; Broadwell v. Swigert, 7 B. Mon. 39; Rathbun v. Payne, 19 Wen. 399. But this rule must be understood with reference to faults which operated directly and immediately to produce the collision. — Cummins v. Spruance, 4 Harr. 315. Because a flat-boat runs at night, when she should not, or ties up in the wrong place, would not justify a steamboat in running into her, any more than a stage coach would be justified in wilfully or carelessly running over a man lying asleep in the road ; and in all such cases, if the act causing the injury could have been prevented by the use of ordinary care, the failure to use it will render the party liable. There is no inflexible rule, either of the river or the road, the neglect of which by the one party will dispense with the exercise of common caution by the other. — Abbott on Shipping 238, and cases cited. But “ ordinary care” is altogether a relative term ; and in cases like those we have put, the want of it means nothing more than the failure to use those precautions which a just regard to the persons and property of others demands should be used under the circumstances of the particular case. Of course, a vessel not in fault would not be obliged, in order to escape a collision, to risk her own safety, or endanger the lives of her passengers; but she should at least use the best skill and judgment of her officers, and the^employment of the means at their command, in order to [204]*204prevent the occurrence of any act fraught with peril to the lives and property of others.
Applying the principles we have laid down to the matter of the second and third pleas, it will be seen that they were both defective, for the reason, that the collision might have been remotely and partly caused by the imprudence and negligence of the flat running at night in a certain part of the river where it was unusual and dangerous for such boats to run, or by mismanagement in being fastened broadside to another flat; but we have already seen that neither of these circumstances would have excused the steamboat, if notwithstanding, she could, by the exercise of ordinary care on her part, have passed them without striking.
In relation to the fourth plea, there is no doubt that a common carrier, as he is not absolved from his liability to the owner of the goods by the torts of third persons, has the right to maintain an action against them for the wrong ; and it is equally certain that a recovery and satisfaction by him, for the injury done to the goods, will be a bar to an action by the owner for the damage or loss from' the same injury.— Story on Bail., § 585 ; ib. § 94. The plea here is artfully drawn, and seeks to escape the action, by setting out a recovery by the carrier, for the injury committed by the running or striking of the steamboat against the flat, which, it avers, “ are the same injuries which the plaintiff’s declaration alleges to have been done to the said cotton of the said plaintiff.” But this is not equivalent to an averment that the recovery was for the effect of such injury upon the same cotton described in the declaration. Non constat, but that the former suit was for the damage done by the collision to the cotton of some óthcr person on board the same flat. The demurrer was properly sustained to this plea also.
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GOLDTHWAITE, J.
— The first question is upon the^action of the court in refusing to set aside the declaration. • The attachment was issued under the act of 17th January, 1844, (Acts 1843-4, 98,) and directs the sheriff to seize and take possession of the steamboat Farmer, with her tackle, apparel, and furniture, and to keép and retain the same in his possession, to answer to the judgment which may be rendered, unless the master, owner, or some other person for then;, enter into bond, &c. The first count of the declaration “ complains of Edward W. Shields, Jacob B. Walker, and Daniel Walker, claimants and owners of the steamboat called the Farmer”; and alleges that they had the care, direction and management of the same, and that by the carelessness and misdirection of [202]*202“ said defendants in the management of said steamboat, she ran into the flat,” &c. The second count differs from the first, only in alleging that “ the said Shields, as commander and captain, had the care and management of the steamboat, and that the flat was run into by his carelessness and misdirection.” We have referred particularly to the declaration, in order to show that it is against the parties named therein, as defendants, and not the boat itself; and this being the case, it falls directly within the decision of this court in Otis v. Thorn, 18 Ala. 395, where the attachment was issued against a steamboat under the same statute, and the declaration was against two of the obligors in the replevy bond as owners. The defendants moved the court to set aside the declaration, which was refused, and the correctness of the action of the court in this respect was the question on error. It was held, that the declaration must be against the boat itself, and not the owners; and that the refusal of the court to set aside the declaration, was a reversible error. It is supposed, however, by the counsel for the appellees, that the fact that the defendants are admitted by the affidavit, on which the attachment issued, to be the owners of the steamboat, and by the attachment bond, which is payable to them as such, takes the case at bar out of the influence of the decision to which we have referred. But we do not think so. The ground on which it rests is, that the act of 1844 gave the remedy against the boat alone, and, although persons interested as owners would have the right to intervene and defend, the declaration must be, in conformity with the process and object of the statute, against the boat, and not its owners. There is no difficulty in framing a declaration to meet this decision. It should complain of the boat itself, and allege the injwry to have been done by it, through the carelessness and negligence of those having its direction and management. It would be unnecessary, in view of the purpose of the statute, and the judicial construction it has received, to state the names of the persons whose carelessness caused the vessel to commit the injury, although the naming of them would not be objectionable. Any of the owners would have the'right to come in and defend the suit j and, by analogy to the practice in admiralty, this should be done by application to the court, stating that the applicant is [203]*203interested in the steamboat seized, as owner, and should be sworn to by Mm if within the State, and not at an inconvenient distance, — otherwise, by his agent (The Adeline, 9 Cranch 244; Dunlap’s Ad. Pr. 161-2); and an entry should be made upon the minutes of the court, admitting him to defend as owner.
As the proceedings, except so far as they are varied by the statute, must be governed by .the rules of the common law, any facts which would defeat the action, had it been brought in case against the owners, will have the same effect when pleaded to this proceeding against the boat. The general rule of the common law unquestionably is, that if both vessels are to blame, neither can recover.—Vanderplank v. Miller, 1 M. & M. 169; Verrall v. Garner, 1 Cromp. & Mees. 21; Lack v. Seward, 4 C. & P. 106; Luxford v. Large, 5 ib. 421; Woolf v. Beard, 8 ib. 373; Kent v. Elstob, 3 East 18 ; Ken-nard v. Burton, 25 Maine 39; Broadwell v. Swigert, 7 B. Mon. 39; Rathbun v. Payne, 19 Wen. 399. But this rule must be understood with reference to faults which operated directly and immediately to produce the collision. — Cummins v. Spruance, 4 Harr. 315. Because a flat-boat runs at night, when she should not, or ties up in the wrong place, would not justify a steamboat in running into her, any more than a stage coach would be justified in wilfully or carelessly running over a man lying asleep in the road ; and in all such cases, if the act causing the injury could have been prevented by the use of ordinary care, the failure to use it will render the party liable. There is no inflexible rule, either of the river or the road, the neglect of which by the one party will dispense with the exercise of common caution by the other. — Abbott on Shipping 238, and cases cited. But “ ordinary care” is altogether a relative term ; and in cases like those we have put, the want of it means nothing more than the failure to use those precautions which a just regard to the persons and property of others demands should be used under the circumstances of the particular case. Of course, a vessel not in fault would not be obliged, in order to escape a collision, to risk her own safety, or endanger the lives of her passengers; but she should at least use the best skill and judgment of her officers, and the^employment of the means at their command, in order to [204]*204prevent the occurrence of any act fraught with peril to the lives and property of others.
Applying the principles we have laid down to the matter of the second and third pleas, it will be seen that they were both defective, for the reason, that the collision might have been remotely and partly caused by the imprudence and negligence of the flat running at night in a certain part of the river where it was unusual and dangerous for such boats to run, or by mismanagement in being fastened broadside to another flat; but we have already seen that neither of these circumstances would have excused the steamboat, if notwithstanding, she could, by the exercise of ordinary care on her part, have passed them without striking.
In relation to the fourth plea, there is no doubt that a common carrier, as he is not absolved from his liability to the owner of the goods by the torts of third persons, has the right to maintain an action against them for the wrong ; and it is equally certain that a recovery and satisfaction by him, for the injury done to the goods, will be a bar to an action by the owner for the damage or loss from' the same injury.— Story on Bail., § 585 ; ib. § 94. The plea here is artfully drawn, and seeks to escape the action, by setting out a recovery by the carrier, for the injury committed by the running or striking of the steamboat against the flat, which, it avers, “ are the same injuries which the plaintiff’s declaration alleges to have been done to the said cotton of the said plaintiff.” But this is not equivalent to an averment that the recovery was for the effect of such injury upon the same cotton described in the declaration. Non constat, but that the former suit was for the damage done by the collision to the cotton of some óthcr person on board the same flat. The demurrer was properly sustained to this plea also.
In admitting the evidence of the owner and person in charge of the flat, the court erred, for the reason, that a recovery in the action would have placed the witness in a state of security against any action the plaintiff might bring against him.—Otis v. Thom, 23 Ala. 469. It is urged, however, that he is made a competent witness by section 2302 of the Code. But if the law of the Code applied, which we do not decide, he Would not be competent, as the verdict and judgment in the [205]*205suit in which he was offered, if in favor of the plaintiff, might be evidence in his favor in another suit against him by the same party (Farwell v. Hilliard, 8 N. H. 318; Gilmore v. Carr, 2 Mass. 171; Wetmer v. Slatter, 2 Rawle, per Huston, J.); and the section referred to expressly provides that the objection to the competency of a witness shall prevail in such a case.
The charges are easily disposed of. The testimony on which they were founded did not tend to show that the conduct of the flat was such as to contribute directly and immediately to the act of collision ; and the sole question, therefore, under the law, was whether the steamboat used ordinary care to prevent it. The first, third, and sixth chatges asserted, in effect, that the fault of one vessel, although. not directly contributing to the collision, dispensed with the want of ordinary care in the other to prevent it, and were therefore properly refused. The second' and fourth should have been given, as they made the li&bility turn on the question of ordinary care on the part of the steamboat; and in relation to the fifth, as the correctness of its refusal is not questioned, it is unnecessary to say anything.
Judgment reversed, and cause remanded.