The opinion of the court was delivered by
Gibson, C. J.
It is an undoubted rule, that, for a loss from mutual negligence, neither party can recover in a court of common law; and, so general is it, that it was applied in Hill v. Warren, (3 Starkie R. 377; S. C. E. C. L. R. 390,) to the negligence of agents, respectively appointed by the parties to superintend the taking, down of a party wall. Courts of admiralty, indeed, decree according to the circumstances, so as to • apportion the loss; but certain it is that a court of law, whether for its inability to adapt its judgment to the merits of such a case, or whether for any other cause, refuses to interfere at all. It has been pressed upon us, however, that though such be the rule betwixt owners of coasting vessels or wagons, it is because seamen and wagoners are the servants of their employers, and have consequently power to affect them by their acts ; that a carrier is not the servant of his employer, but an independent contractor ; and that there is no more privity betwixt the owner of the vehicle and the owner of the goods, than there is betwixt the owner of a stage-coach and a passenger in it, who may, it is said, have an action against the owner of another coach driven carelessly agains.t it to his hurt, without regard to the question of negligence betwixt the drivers. The argument- is plausible, but the authorities -are against it. Vanderplank v. Miller was the very case of an action by the owners of goods-damaged by collision; and Lord Tenterden, without adverting to the supposed distinction betwixt them and the carrier, directed that, if, there was want of care on both sides, the plaintiffs could not recover. ' The force of the decision is attempted to be evaded by supposing the owners of the goods to have been their own carriers: but nothing in the report gives colour to such a supposition; and owners of both goods and vessel would scarce.have [322]*322brought their action for damage to the goods alone. That case, therefore, is in point; and though it was ruled at Nisi Prius, the counsel seem to have been satisfied with the verdict. To the same purpose is Smith v. Smith; the difference being that the person who had the horse in charge at the time of the injury, was not a carrier, but a bailee for hire. Still he was no more than a carrier, the owner’s servant; nor was he less liable, on the contract, for actual negligence. But the principle is founded in reason as well as authority. There is at least privity of contract betwixt a merchant and his earner ,• and the former, when he commits the management and direction of his goods to the latter, giving him, as he does, authority to labour and travail about the transportation of them, necessarily constitutes him, to some extent, his agent; and this inference is sanctioned by judicial decision. In Bedle v. Morris, (Cro. Jac. 224,) an owner of goods stolen from a carrier at an inn, was allowed to maintain an action for them against the innkeeper; and as the latter is liable only for things infra hospitium, and to passengers and wayfaring men, as was ruled in Calye’s case, (8 Rep. 63,) it follows that the action was maintained not on the right of property, but on the relation of innkeeper and guest; and that the owner, to bring himself within it, was allowed to treat the carrier as his substitute. It will not be pretended that, had the innkeeper’s vigilance been put asleep by misrepresentation of the carrier in respect to the value of the goods, it might not have been set up in bar of the action; yet that would have made the owner liable to the consequences of the carrier’s deceit. Neither will it be pretended that an owner could recover for special damage, occasioned by gross negligence of the carrier in suffering the goods to be tumbled into a trench cut across the highway; for that would make the author of a public nuisance answer for a private wrong which he did not commit; yet if the owner were not to be affected by the carrier’s negligence, such an action might be maintained on the right of property. So far has the owner’s responsibility been carried in every species of bailment, that, where beasts in the custody of another who does not appear to have been his servant, were suffered to commit a trespass, the owner of them was held to answer for it. Viner, Trespass, B. pi. 1. The case put of injury to a passenger from a collision of a stage-coaches, wants the essential ingredient of bailment to complete its analogy to the present; but I am not prepared to admit that even he could have an action for mutual negligence against any one but him to whose care he had committed his person. A carrier is liable to his employer at all events; and to make his associate in misconduct answerable for all the consequences of it, would make one wrong-doer respond, in ease of another, for an injury that both had committed. It is more just that the carrier should answer to his employer, rather than one in whom the employer had reposed no confidence. What remains, then, is to inquire whether there was evidence, in the case [323]*323before us, of mutual negligence in the conduct of those who had the vessels in charge.
That there was carelessness on board the William Henry was proved by her own crew. The pilot testified explicitly that the accident would not have' happened if the mate, who was on the look out, had done what was palpably his duty. The Thorn was perceived when she was at the distance of nearly three hundred yards; yet, though he called out to starboard the helm, the order was neither responded to nor repeated. He said further, that the mate gave him no intimation of the Thorn’s presence till she was struck; and that had he done so while she was distant twice the length of his own vessel, he could have cleared her. The mate himself says that he gave no intimation to the pilot at all; and that his call was to the man who was supposed to have the Thorn in charge. It was, then, gross negligence in him to recur to a measure so uncertain, in exclusion of that which was the most natural, easy, and proper. To avoid every chance of accident from the probable drowsiness of the anchor-watch, he ought to have given the order to the steersman of his own vessel, known to be on the alert. Even had it been certain that the anchor watch was equally so, he was bound to know that a vessel at anchor could not be so readily got out of the way, as it could be cleared by another in motion; and it was his duty to take his measures accordingly. Such was the evidence of negligence on board the William Henry; and what was the evidence of it on board the Thorn I
There were three points of fact to which the attention of the jury was at first directed, but from which it was unfortunately withdrawn in the sequel. The Thorn’s position in relation to the channel; the burning of a signal light aboard of her ,* and the conduct of her anchor-watch. As regards two of them, her position and light, there was a conflict of evidence. Four of the six persons who composed her crew, testified that she was anchored out of the thoroughfare or customary track; that the mate set an anchor watch; and that he placed a signal lantern in the peak-halliards. This was before the crew retired to their berths; but the point of time material to the question was the instant of the collision, and what was the state of things then 1
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The opinion of the court was delivered by
Gibson, C. J.
It is an undoubted rule, that, for a loss from mutual negligence, neither party can recover in a court of common law; and, so general is it, that it was applied in Hill v. Warren, (3 Starkie R. 377; S. C. E. C. L. R. 390,) to the negligence of agents, respectively appointed by the parties to superintend the taking, down of a party wall. Courts of admiralty, indeed, decree according to the circumstances, so as to • apportion the loss; but certain it is that a court of law, whether for its inability to adapt its judgment to the merits of such a case, or whether for any other cause, refuses to interfere at all. It has been pressed upon us, however, that though such be the rule betwixt owners of coasting vessels or wagons, it is because seamen and wagoners are the servants of their employers, and have consequently power to affect them by their acts ; that a carrier is not the servant of his employer, but an independent contractor ; and that there is no more privity betwixt the owner of the vehicle and the owner of the goods, than there is betwixt the owner of a stage-coach and a passenger in it, who may, it is said, have an action against the owner of another coach driven carelessly agains.t it to his hurt, without regard to the question of negligence betwixt the drivers. The argument- is plausible, but the authorities -are against it. Vanderplank v. Miller was the very case of an action by the owners of goods-damaged by collision; and Lord Tenterden, without adverting to the supposed distinction betwixt them and the carrier, directed that, if, there was want of care on both sides, the plaintiffs could not recover. ' The force of the decision is attempted to be evaded by supposing the owners of the goods to have been their own carriers: but nothing in the report gives colour to such a supposition; and owners of both goods and vessel would scarce.have [322]*322brought their action for damage to the goods alone. That case, therefore, is in point; and though it was ruled at Nisi Prius, the counsel seem to have been satisfied with the verdict. To the same purpose is Smith v. Smith; the difference being that the person who had the horse in charge at the time of the injury, was not a carrier, but a bailee for hire. Still he was no more than a carrier, the owner’s servant; nor was he less liable, on the contract, for actual negligence. But the principle is founded in reason as well as authority. There is at least privity of contract betwixt a merchant and his earner ,• and the former, when he commits the management and direction of his goods to the latter, giving him, as he does, authority to labour and travail about the transportation of them, necessarily constitutes him, to some extent, his agent; and this inference is sanctioned by judicial decision. In Bedle v. Morris, (Cro. Jac. 224,) an owner of goods stolen from a carrier at an inn, was allowed to maintain an action for them against the innkeeper; and as the latter is liable only for things infra hospitium, and to passengers and wayfaring men, as was ruled in Calye’s case, (8 Rep. 63,) it follows that the action was maintained not on the right of property, but on the relation of innkeeper and guest; and that the owner, to bring himself within it, was allowed to treat the carrier as his substitute. It will not be pretended that, had the innkeeper’s vigilance been put asleep by misrepresentation of the carrier in respect to the value of the goods, it might not have been set up in bar of the action; yet that would have made the owner liable to the consequences of the carrier’s deceit. Neither will it be pretended that an owner could recover for special damage, occasioned by gross negligence of the carrier in suffering the goods to be tumbled into a trench cut across the highway; for that would make the author of a public nuisance answer for a private wrong which he did not commit; yet if the owner were not to be affected by the carrier’s negligence, such an action might be maintained on the right of property. So far has the owner’s responsibility been carried in every species of bailment, that, where beasts in the custody of another who does not appear to have been his servant, were suffered to commit a trespass, the owner of them was held to answer for it. Viner, Trespass, B. pi. 1. The case put of injury to a passenger from a collision of a stage-coaches, wants the essential ingredient of bailment to complete its analogy to the present; but I am not prepared to admit that even he could have an action for mutual negligence against any one but him to whose care he had committed his person. A carrier is liable to his employer at all events; and to make his associate in misconduct answerable for all the consequences of it, would make one wrong-doer respond, in ease of another, for an injury that both had committed. It is more just that the carrier should answer to his employer, rather than one in whom the employer had reposed no confidence. What remains, then, is to inquire whether there was evidence, in the case [323]*323before us, of mutual negligence in the conduct of those who had the vessels in charge.
That there was carelessness on board the William Henry was proved by her own crew. The pilot testified explicitly that the accident would not have' happened if the mate, who was on the look out, had done what was palpably his duty. The Thorn was perceived when she was at the distance of nearly three hundred yards; yet, though he called out to starboard the helm, the order was neither responded to nor repeated. He said further, that the mate gave him no intimation of the Thorn’s presence till she was struck; and that had he done so while she was distant twice the length of his own vessel, he could have cleared her. The mate himself says that he gave no intimation to the pilot at all; and that his call was to the man who was supposed to have the Thorn in charge. It was, then, gross negligence in him to recur to a measure so uncertain, in exclusion of that which was the most natural, easy, and proper. To avoid every chance of accident from the probable drowsiness of the anchor-watch, he ought to have given the order to the steersman of his own vessel, known to be on the alert. Even had it been certain that the anchor watch was equally so, he was bound to know that a vessel at anchor could not be so readily got out of the way, as it could be cleared by another in motion; and it was his duty to take his measures accordingly. Such was the evidence of negligence on board the William Henry; and what was the evidence of it on board the Thorn I
There were three points of fact to which the attention of the jury was at first directed, but from which it was unfortunately withdrawn in the sequel. The Thorn’s position in relation to the channel; the burning of a signal light aboard of her ,* and the conduct of her anchor-watch. As regards two of them, her position and light, there was a conflict of evidence. Four of the six persons who composed her crew, testified that she was anchored out of the thoroughfare or customary track; that the mate set an anchor watch; and that he placed a signal lantern in the peak-halliards. This was before the crew retired to their berths; but the point of time material to the question was the instant of the collision, and what was the state of things then 1 The plaintiffs’ witnesses asserted that the light was burning in its place when they came upon deck, a few moments after the shock; while those on the adverse part, including one of the Thorn’s crew, testified that no such thing was visible, and that they would have seen it had .it been there. Again, the defendants’ witnesses testify that the Thorn was lying in the very middle of the channel; a fact rendered, probable by the depth of her water; and if she was lying there, without a light to mark her position and presence, she had not used those precautions which prudence required. It was, indeed, ruled in Carsly v. White, (21 Pick. 254,) that there is no rule of positive prescription like the ordinances of Oleron, or [324]*324any general usage, which requires a light to be constantly exhibited in the night time by a vessel at anchor in a harbour; and that whether the omission of it be negligence to bar an action for a collision, must depend upon the impression made by the circumstances on the minds of the jury. A vessel is doubtless not bound to show a light when she is moored out of harm’s way; but vessels run at all hours on the Delaware; and it was proved to be a custom of the river to set a light in' nights of unusual darkness; and though there is no positive law to enforce it, the neglect of it must give a false confidence to an approaching vessel which she would not feel if there was no custom at all. In such circumstances, a want of conformity to the custom is an allurement to disaster. Indeed, the hoisting of a light is a precaution so imperiously demanded by prudence, that I know not how the omission of it could be qualified by circumstances, any more than eould the leaving of a crate of china in the track of .a rail-road car; or how it could be considered otherwise than as negligence per se.
Betwixt the stories of those who spoke of the conduct of the anchor-watch, there can scarce be said to have been a differences The pilot testified that he ran forward at the time of the collision, and that no person was then on the Thorn’s deck. Evans, the passenger, said the same; and he, as well as the mate, declared that the first man they saw on board of her, was in the act of coming out of the cabin. M'Cracken, who was one of the Thorn’s crew, deposed that neither light nor watch' had been set; that the crew, at the time of the disaster, were asleep in their berths; that he and Joe, the reputed anchor-watch, slept together in the forecastle; and that, being roused by the jar, they got on deck through the scuttle, where they found that no one had preceded them. In addition, no one pretended that an answer was returned when the Thorn was hailed. On the other side, the master of the Thorn testified that when he came up, he found Joe on deck; the mate said the first man he saw on deck was Joe; and Hess, the seaman, said that he found Joe on deck forward. Now this may have been perfectly true, and yet Joe may have been asleep when his services were wanted; nor is it at all inconsistent with the testimony on the other side. The only witness who pretended to say where he was at the time of the collision, said that he was not at his station; and Joe himself was not called to contradict him. Now, though the rule is that a vessel in motion is bound to shape its course so as to pass another at rest, if need be, without its co-operation, it seems to be the custom of the Delaware for the crew of a vessel, at anchor in the stream, to give such a shear as may prevent a vessel in the act of passing, from running foul of it in case of accident. Had that been done in this instance, the disaster would have been escaped ;-and though the want of co-operation did not justify the mate’s negligence in not taking his measures so-as not to need it, [325]*325it would fix an imputation ofinegligence on the Thorn to show that her anchor-watch was not at his station in time to afford it.
Instead, then, of being told that, notwithstanding the Thorn may-have been deficient in any, or all, of the preceding particulars, the plaintiffs would be entitled to recover if she was perceived on board of the William Henry in time to be avoided, the jury ought to have been told that if she was moored in the channel, without a light burning at the time; or that if her watch was not present, and did what is customary on such occasions, her people were obnoxious to such a charge of negligence as would bar the action; and that the burthen of proof lay on the plaintiffs.
New trial granted.
[327]*327\