text:
    Lee v. The State of Ohio.
    1. Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.
    2. In the absence of anything on the record showing what the facts were, that wore misapprehended, or upon which the court acted in making such revision of its sentence, the reviewing court will presume that the court below acted upon sufficient and valid information, such as would ■have been proper to have, in fixing the first sentence, and was in the exercise of a sound judicial discretion, and in furtherance of justice and the due administration thereof.
    Error to Court of Common Pleas of Portage county.
    The facts are sufficiently stated in tlie opinion of the court.

      Rockwell & Norris, for plaintiff in error.
   Johnson, J.

It appears, from the record, that Lee was indicted at the January term, 1874, for selling intoxicating liquor, to be drank where sold, and was arraigned and pleaded not guilty.

At the May term, 1874, being before the court under recognizance to appear and answer to this charge, he asked and obtained leave to withdraw his plea, and enter a plea of guilty, whereupon he was sentenced to pay a fine of ten dollars and costs, and to stand committed until said fine and costs were paid or secured. These proceedings were had May 12,1874, but no steps were taken to carry the sentence into execution.

Afterward, on the 15th of May, 1874, and during the same term, Lee was again before tbe court, under another recognizance, to answer to another indictment, for seiliug liquor to a minor, and the court then finding that in passing said sentence in the first case it bad acted under a misapprehension of tbe facts of tbe case, and that no portion of said fines and costs bad been paid or secured, and that defendant bad not been taken into custody under said judgment, set aside tbe same, and proceeded again to sentence him.

The defendant excepted to setting aside the judgment, and offered to pay tbe fine and costs, but the court refused to allow the clerk to receive the same. He then filed a plea in abatement, reciting the foregoing facts, and that tbe two indictments were for one and tbe same sale of liquor.

He also demanded leave to withdraw bis plea of guilty, and again enter bis first plea of not guilty, which the court refused.

He was then sentenced anew, upon bis plea of guilty, to pay a fine of thirty dollars and costs, and be committed to jail twenty days, and to stand committed until the fine and costs were paid.

To all the acts and proceedings of tbe court after tbe first sentence pronounced on the 12th of May, tbe defendant excepted.

Tbe single question is, bad the court tbe power to revise and increase its judgment, at the same term before any part of tbe fine and costs bad been paid, and before any steps had been taken to execute it ?

That this power exists, is settled by a long line of decisions of the highest authority.

It is said by Lord Coke (Co. Litt. 260«) that, “ during the term wherein any j udicial act is done, tbe record remaineth in the breasts of the judges of the court, and in their remembrance, and therefore tbe roll is alterable during that term, as the judges shall direct; but when that term is past, then tbe record is in tbe roll, and admittetb of no alteration, averment or proof to tbe contrary.”

In 1 Chitty Grim. Law, 722, the rule is stated thus: “In cases of misdemeanors it is clear that the court may vacate the judgment before it becomes a matter of record, and may mitigate, or pass another, even when the latter is more severe ; and the justices at sessions have the same power during the session, because it is regarded only as one day.”

The power has been often exercised both in England and in this country in numerous eases. Regina v. Fitzgeral, 1 Salk. 401; The King v. Price, 6 East. 327; The King v. Justices, 1 M. & S. 444; Darling v. Gurney, 2 Dowl. Pr. C. 101; Commonwealth v. Weymouth, 2 Allen, 144; The State v. Harrison, 10 Yerker, 542; Miller v. Finkle, 1 Parker C. 374; Matter of Mason, 8 Mich. 70; Jobe v. The State, 28 Geo. 235; Cheang-Kee v. United States, 3 Wall. 320; Basset v. United States, 9 Wall. 39; Bishop Crim. Procedure, § 1123.

In Basset v. United States the court goes much farther than is required in this case.

It was there held, that after a sentence to jail upon plea of guilty, and after the prisoner was committed and was serving out his sentence, the court might for good cause, at the same term, set the sentence aside.

We are not called upon to discuss the wisdom or expediency of the course adopted by the court, in revising and increasing a senteuce which had been formally promulgated and pronounced on a convict.

It appears from the record, that in passing the first sen-, tence, the court acted under a misapprehension of the facts.

In the absense of a showing to the contrary, we must presume, that there were sufficient reasons addressing themselves to the sound judicial discretion of the court for such action, and that it was deemed to be necessary in furtherance of justice and the due administration of the law. It is said this is a dangerous power. The same may be said of the exercise of all judicial discretion.

This is equally as true of the discretion exercised in the first instance, in fixing the sentence, as in that exercised in revising it.

If the court in revising its own sentence coniines itself to such information as it has the right to have in the first instance, no greater danger of abuse exists than in the exercise of judical discretion in rendering its first judgment.

The power to revise judgments, of the same term, and, before execution has commenced, to correct errors and mistakes is necessary for the protection of the defendant, as well as the public, and may be exercised as well in his,favor as against him, when the court has been misled by mistake or fraud.

The refusal of the court to allow the defendant to withdraw his plea of guilty, and again plead not guilty, rested in the sound discretion of the court, and can not be reviewed for the reasons already given.

Judgment affirmed.

Ashburn, J., dissented.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    The Baltimore and Ohio Railroad Company v. The Wheeling, Parkersburg and Cincinnati Transportation Company et al.
    1. The bridge over the Ohio river at Parkersburg being authorized by a law of Congress, the obstruction of navigation at that point, so far as it was reasonable and necessary to the construction of the work, was justified.
    2. In considering the rights of navigation, they must be viewed as limited by those rights which have been conferred upon the bridge company by the law authorizing the structure in question.
    3. What might be negligence in leaving a barge unguarded in a navigable part of the river, is not necessarily negligence if it is so left under circumstances fairly justified by the necessities or convenience of those engaged in the erection of the bridg.e.
    4. Although prudence dictates that a vessel, left during the night in the usual route of passing craft, should display a light as a signal of warning to others, yet, when such vessel is moored out of the usual path of navigation, where boats rarely if ever come, and in a place where the bridge work was going on from day to day, such work, at times, necessitating a temporary closing of the passage way altogether, the absence of a light upon a vessel so circumstanced is not necessarily negligence.

      5. Before such alleged negligence can become the foundation of a right to recover damages, it must appear to have been the proximate cause of the injury occasioning such damages.
    6. "When a pilot leaves the usual and customary channel of navigation, that fact requires an increased amount of care on his part to avoid the danger attending the new risks he undertakes. If, in pursuing such a course, he encounters a collision, it is not a sufficient justification for him to show that he exercised that ordinary care proper in the usual and ordinary course of navigation.
    7. Approaching places of danger, such, as the piers of a bridge, during the night time, a lookout is indispensable upon a steamboat. An omission in this regard is such negligence as will prevent a recovery, unless it clearly appears that a lookout could not by any possibility have prevented disaster.
    8. A pilot having mistaken his course, and not knowing where his boat is, who attempts the dangerous passage of a bridge at night, at the highest rate of speed, and without any lookout, is guilty of negligence. And if, under such circumstances, he collides with a barge moored to a bridge pier, which is out of the usual channel of navigation, and by the collision his own boat is lost, the owners of the boat can not recover, although the barge was without a light.
    Error to tbe Superior Court of Cincinnati.
    This was an action brought by defendant in error (plaintiff below) against tbe Baltimore and Obio Railroad Company, a corporation organized under tbe laws of Maryland. Service of process was bad upon one Henry T. Heckert, wbo, appearing for sueli purpose only, moved to quash and set aside tbe service. Upon the bearing of tbe motion tbe following is tbe bill of exceptions, omitting formal parts: “That tbe line of tbe Marietta and Cincinnati Railroad Company’s railroad extends from a point on the Obio river, opposite Parkersburg, to Cincinnati; that said last-named company is a corporation, in tbe stock of which tbe defendant is interested as owner to a large amount, more than any other single stockholder, but less than a majority of said stock; that said corporations are in relations of close amity, and running arrangements exist between them by parol, by which through freight passes over either road from tbe other without change of cars, upon a pro rata division of the compensation, and that the vice-president of the defendant is president of the Marietta and Cincinnati Railroad Company, but the said running arrangement is not other or different from that which subsists between the defendant and the Little Miami Railroad Company; and for the purpose of showing the manner in which the business of said company is done, in connection with said Marietta and Cincinnati Railroad Company and said Little Miami Railroad Company, and by said Heckert, a specimen of the blank printed bill of lading of said defendant, in use by said Heckert as agent of the defendant, is hereto attached and made part of this bill of exceptions, upon which bill said Heckert is accustomed as agent for the defendant to contract for the transportation of freight from Cincinnati to Baltimore.”
    The affidavit of Heckert was also offered in evidence, as follows:
    “ The State of Ohio, Hamilton County, ss.

    “ Henry E. Heckert, being duly sworn, says that he is the agent of the Baltimore and Ohio Railroad Company, upon whom service of process was made in this case; that the agency of the affiant for said company consists in contracting for the transportation of freight over said railroad, and in attending to the transfer of freight to and from the connecting roads of said company, which has been shipped to or from any point on said company’s road, on through bills of lading; that said company is a corporation created by the laws of Maryland, and engaged in operating its main line of road and branches in Maryland, Virginia, and West Virginia; that it is in possession of two lines of railroad in Ohio by lease — one extending from Bellair to Columbus, the other from Newark to Sandusky City; that no part of said company’s road or branches extends into or is within Hamilton county, Ohio; and further says not.
    “Henry E. Heckert.”
    The following is the specimen of the blank printed bill of lading:

      The motion was overruled and exception duly taken.
    Upon the trial of the case to the jury, the following appeared to be the state of fact:
    The bridge over the Ohio river, at Parkersburg, was in process of erection by the Baltimore and Ohio Railroad Company, plaintiff in error, under authority of a law of Congress. Five piers had been built, numbering from the West Virginia shore, 1, 2, 3, 4, and 5. No. 5 being nearest the Ohio shore. The deepest “water, and what was the usual channel in low water, was between piers 8 and 4, and 4 and 5. These spans are each three hundred and twenty-two and two-thirds feet wide in the clear, while the space between piers 2 and 3 is but one hundred and eighty-five feet wide. Piers 3,4, and 5 were lighted at night with red lights, indicating, as was generally understood, the channel spans. Piers 1 and 2 were lighted with white lights. All the piers were twenty-five or thirty feet above the water. On the night of December 7, 1870, the river was at' a medium stage, and there was water enough to float a boat between any of the spans. At about eleven o’clock of that night, the steamboat Rebecca, owned .by the Transportation Co., defendant in error, a packet coming from Marietta, and intending to land at Parkersburg, running at the rate of fourteen miles an hour, under a full head of steam, collided with a barge moored to the West Virginia side of pier No. 3. The steamboat was stove, and sunk in two minutes after the collision. The barge belonged to the plaintiff in error, the Baltimore and Ohio Railroad Company, and was used in the work of building the bridge. She had no light upon her at the time of the accident. The night was what steamboatmen call a “ gray night,” rather dark and hazy. It was the captain’s watch on the Rebecca. He, however, had gone to bed, and the second mate was standiug. watch, but had left the hurricane roof shortly before the collision, to go below' aud get up the men to land freight at Parkersburg.
    Ollum, the pilot at the wheel of the Rebecca, supposed that he was running his boat between piers 3 and 4. He testified, before the coroner’s j ury, the day after the disaster, and was then positive that he ran between piers 8 and 4. In his testimony upon the trial, his belief still was that he went between piers 3 and 4.
    The usual course of steamers about to land at Parkersburg, was to keep rather nearer to the Ohio shore, passing between piers 3 and 4, or 4 and 5, where the deepest water is found, and by taking this route better opportunity was afforded, and moré ample room, for rounding to, upon the Virginia shore.
    A large amount of testimony was offered as to whether a look out should be stationed upon the hurricane roof, or other eligible position, for the purpose of advising and. assisting the pilot in passages of danger.
    There was also much testimony as to the proper way of running bridge piers — some holding it safer to approach them at slackened speed, others that the boat should run at its highest velocity.
    It is impossible to give any full statement of the evidence, consisting, as it does, of some four hundred printed pages, but the foregoing may be sufficient to illustrate the charges of the Court, which will be-the subject of more particular consideration.
    The alleged ground of negligence on the part of the Baltimore and Ohio Railroad Company, is, the absence of a light, or signal, on the barge, to give warning of her presence.
    It is claimed by counsel for plaintiff in error, defendant below, that, in point of law, the Rebecca was guilty of contributory negligence, in deserting the proper and usual course of navigation, which was between piers 3 and 4, and 4 and 5, and passing to thé "West Virginia side, where she, and boats like her, were not accustomed to run.
    Upon this subject the defendant below asked the court to charge :
    No. 13. “ That it was the duty of the pilot at the wheel of the Rebecca, to have navigated her in the usual channel of steamboats, and if, by want of care or attention to his said duty by Mm, he navigated her into a part of the river not usually employed for steamboat navigation, and brought her there into collision with- the defendant’s barge, and it also appears that by the use of ordinary care he could have kept her in the ordinary channel of descending steamboats, and avoided such collision, the plaintiffs can not recover.”
    This charge the court refused.
    No. 14. “ That if the ordinary and usual channel for descending steamboats, at the then stage of water, was between piers 3 and 4, or 4 and 5, and if the said channel was distinctly indicated by red lights upon said piers, the use of which was known, to the pilot of the Rebecca, to be to point out such channel, and if by ordinary care he might have seen said lights, and navigated said steamboat in said channel, then he was guilty of negligence in leaving said channel, and the plaintiffs can not recover, if by such negligence said pilot contributed to the happening of the collision.”
    This charge the court refused.
    No. 15. “ That the act of the pilot in leaving the ordinary and usual channel of navigation is not excused by proof that he' mistook some other* light for one of the bridge lights, if said mistake could have been avoided by ordinary care on his part.”
    This charge the court refused. The defendant having excepted to each of these refusals, also excepted to the following passages in the general charge of the court to the jury: -
    Exception No. 5 was to the following charge of the court:
    “ If you find, from the evidence, that the plaintiff knew,- or had reasonable cause to believe, that it was dangerous, on the night in question, to descend the Virginia shore of the Ohio river, and knew, or had reasonable cause to believe, that there were dangerous obstructions between piers 2 and 8, not indicated by lights or other signals, and intentionally descended the Virginia side, and intentionally attempted to navigate its boat between said piers 2 and 3, and in such attempt met with the loss complained of, the plaintiff can not recover. Such intentional attempt, with such knowledge, or with such reasonable cause to believe that the danger existed, would constitute negligence directly contributing to the injury.”
    Exception No. 6 was to the following charge of the court: “ If, however, the plaintiff was approaching toward piers two and three by accident or mistake, and you find from the evidence that a light or other signal, if placed on the barge, would have enabled the pilot to correct such mistake or accident in time to avoid the collision and consequent injury, and that ordinary care was exercised after the actual discovery of the barge, such accident or mistake would not prevent the plaintiff from recovering for the loss.”
    Exception No. 7 was to the following portion of the charge: “If you find, from the evideuce, that on the night in question, at the then stage of water, the Ohio river was navigable between any of the said piers, then the plaintiff had the right to attempt to pass between any of said piers, provided no danger was anticipated, notwithstanding the defendant had, by red and white lights, indicated the usual course of navigation ; and such attempt would not be negligence on the part of the plaintiff.”
    And in another part of the general charge the court said: “ That where, at a given stage of water, the river is safely navigable between any of said piers, the general custom of prudent pilots to pass between certain of said piers only, does not constitute an obligatory rule for others ; as in such case the custom is a matter of choice or convenience only, and not a matter of prudence or of necessity ; and it is for the jury to say whether such custom, at such time, would reasonably warrant the inference that there was no probability that other navigable parts of said river than the customary part would be used.”
    Counsel for defendant below also claimed that the Rebecca was also guilty of contributory negligence in not maintaining a sufficient lookout, and asked the court to charge: No. 18. “ That it was the duty of the captain and mates of the Rebecca to observe the usual watchfulness and attention to duty of captains and mates of ordinary skill under like circumstances, and if the jury are satisfied from the evidence that in meeting and passing obstructions to river navigation, like the piers of the Parkersburg bridge, it is the usual custom of captains and mates of ordinary skill to keep a watch from the hurricane-roof, then it was the duty of the captain and mates of the Rebecca to maintain such watch, and if the jury are satisfied that such watch was omitted, and that such omission contributed to cause the collision, then the'plaintiffs can not recover.”
    This charge the court refused to give as asked, but gave it with the following modifications: In the last line but one, after the word “ omission,” by inserting the words “ at the time of the collision,” and after the words “ contributed to,” by inserting “the proximate,” and after the word “ cause,” by inserting “ of,” so that the latter part of the charge should read thus: “And if the jury are satisfied that such watch was omitted, and that such omission at the time of the collision contributed to the proximate cause of the collision, then the plaintiffs can not recover.”
    In charge No. 19, which was refused as asked, but given with modifications, the modifications are indicated by italics within brackets:
    “If the jury believe, from the evidence, that it is usual in the navigation of steamboats by officers of ordinary skill for the captain to be on watch on the hurricane-roof at the time of night, and under like circumstances to those which surrounded the Rebecca just before her loss by collision; or if he leave such watch, that it is usual, in such navigation, for such captain to call a mate or watchman to take his place in such watch on the hurricane-roof, and if one of the objects of such watch is to assist the pilot in looking out for obstructions, and to notify him of any mistake he may make in the course of navigation, so as to enable him to correct the same; and if there was no such watch on the Rebecca, but her captain was in bed and her mate and watchmen were below [and were not called therefor other necessary duties], then the omission [at the time of the collision], to maintain such watch was negligence, and if (instead of “and if,” the court here used the word “provided”) the jury believe from the evidence that said watch, if kept with ordinary care [at the time of the collision], would have prevented said collision; then the plaintiffs can not recover.”
    This charge the court refused to give as asked, but gave with the addition of the words printed in italics within brackets, and the substitution of “ provided ” for “ and if.”
    The general charge of the court contained the following passages, to each of which the defendant excepted.
    Ninth exception — to the following: “It is also claimed that the plaintiff was guilty of negligence at the time, in not having the usual officers, or any officers, on watch. As to this matter, you will ascertain from the evidence what officer, if any, was on watch; whether he was at his usual place, or if not, whether other duties called him elsewhere on the boat; for wherever the duty of a person on watch calls him, that for the time being is his proper place.”
    Tenth exception: — to the following : “ You will also find from the evidence whether, if the person on watch had been at his usual place, he would probably have been able to discover the barge, on such a night, in time to have avoided a collision and consequent injury. If you find that he would not, his absence would not be such negligence as would prevent the plaintiff from recovering.”
    It was further claimed by counsel for defe7idant, that the Rebecca was guilty of contributing to the disaster, by running at full speed just above and through the piers, and very near the wharf of Pai’kersburg, andlthe court was asked to charge: No. 16. “ That if the usual and ordinary speed of navigation of steamboats just above and between the piers of the Parkersburg bridge, at the time and with the stage of water existing when the Rebecca was lost, as adopted and employed by pilots of ordinary care and skill, in the navigation of that part of the Ohio river, was at

      a slow bell or about or less than half of full speed, then the plaintiffs were not justified in running, just above and between said piers, at full speed, and if by so doing the collision was caused, when by running at the usual and ordinary rate of speed afoi’esaid it would not have happened, the plaintiffs can not recover.”
    This charge was refused as asked, but given with the addition :
    “ Provided the j'ury further find from the evidence, that * full speed ’ was in itself dangerous, regardless of the usual custom of pilots, and that the Rebecca could not safely attempt to run at full speed between said piers if. unobstructed.”
    To which refusal and addition the defendant excepted.
    And the defendant also excepted to the following passage of the general charge.
    Eighth exception — to the following:
    “ It is for the jury to say, from the evidence, whether the running of piers, where no danger from obstructions is anticipated, under a full head of steam, is negligence or diligence.”
    Upon trial before a jury, verdict was rendered for plaintiff in the sum of $18,490. Motion for new trial was overruled, and a bill of exceptions taken embodying all the testimony. The general term of the superior court affirmed the judgment of the special term, and a petition in error was filed in the supreme court.

      Hoadly & Johnson, for plaintiff in error:
    1. There was no negligence in leaving the barge without a light.
    The bridge vras built under, and in accordance with, the act of Congress of July 14, 1862 (12 Stat. at Large, 569), which provides the width of two of the spans of the bridge, the one over the navigable portion of the river. This was a notice by law where vessels should go.
    As by law only two spans are required, the company was left free to close or obstruct, at will, the rest of the river. Therefore, it was not improper for the defendant to leave its barge where it did, without a light. It was bad navigation for the Rebecca to go there.
    There are two other reasons why there was no negligence in leaving the barge without a light:
    1. General. Because the pier-light was warning enough to the Rebecca to keep away.
    2. Applicable to the Rebecca only. Because her known customary course down the river was between piers 8 and 4 or 4 and 5, and there was no reason to apprehend her coming between piers 2 and 3.
    The duty imposed upon the barge and the railroad company was that of ordinary diligence. This is a relative term (C. C. & C. R. R. Co. v. Terry, 8 Ohio St. 581), and must be applied to the facts as they existed. As there was no reasonable apprehension of collision with the Rebecca, there was no duty to provide against it. Simpson v. Hand, 6 Wharton, 324; The Scioto, Davies, 368; Vennable v. Garner, 1 Cromp. & M. 21; Drew v. Steamboat Chesapeake, 3 Doug. (Mich.) 33; Myers v. Perry, 1 Law Ann. 372; The Bridgeport, 14 Wall. 116; The Granite State, 3 Wall. 310; Ure v. Coffman, 19 How. 56; Culbertson v. Shaw, 18 How. 584; Steamboat Blue Wing v. Buckner, 12 B. Mon. 246; Hudson v. Roberts, 6 Exch. 699; Hess v. Lupton, 7 Ohio (pt. 1) 216; Greenland v. Chapin, 6 Exch. 248; Indemaur v. Dames, L. R., 1 C. P. 274; 2 C. P. 311; Southcote v. Stanley, 1 H. & N. 247; Chapman v. Rothwell, 1 Ellis, Bl. & E. 168; Buxton v. Railway, L. R., 3 Q. B. 549; Van Dyke v. Cincinnati, 1 Disney; 532; Langridge v. Levy, 2 M. &. W. 518; Wells v. Cook, Cincinnati v. Evans, 5 Ohio St. 603; Atlee v. Packet Co., 21 Wall. 389.
    II. In point of law, the Rebecca was guilty of contributory negligence in deserting the proper and usual course of navigation, which was between piers 3 and 4, and 4 and 5, and passing to the West Virginia side, where she and boats like her were not accustomed to run.
    This fault was in itself the principal efficient cause of the collision, but it may be considered in a twofold aspect:
      First, as improper navigation, even if conducted with extreme caution; and, secondly, as improper, because requiring extra caution, which was not observed.
    And, again, it contributed in this way: The barge not having reason to anticipate such deviation, was not bound to and did not provide against it. Jones et al. v. Pitcher et al., 3 Stew. & Porter, 136, 180; Steam Ferry-boat Relief, Olcott, 104; Burrett v. Williamson, 4 McLean, 588; 13 How. 101; Keys v. Steamboat, 1 Bond, 237; Thorp v. Steamboat, 1 Bond, 397; Ib. 57; The Magenta, 2 Abbott’s C. C. R. 495; Gosler v. Shute, 18 How. 463; The Vanderbilt, 6 Wall. 225; Bates v. Steamboat, Newb. 489; The City of New York, 8 Blatchf. 194; The Java, 14 Wall. 189; Pluckwell v. Wilson, 5 Car. & Payne, 375; Wynn v. Allard, 5 Watts & S. 524.
    III. The Rebecca was guilty of contributory negligence in not maintaining a sufficient lookout. Steamboat New York v. Bea, 18 How. 225; Wood v. Davis, 18 How. 467; St. John v. Paine, 10 How. 557, 585; Newton v. Stebbins, 10 How. 586; Propeller Genesee Chief v. Fitzhugh, 12 How. 443; 21 How. 184; 21 How. 548; 22 How. 461; 23 How. 287; Sturges v. Boyer, 24 How. 110; The Ottawa, 3 Wall. 268; The Hypodame, 6 Wall. 216; The Ariadne, 13 Wall. 475; The Schooner Catharine v. Dickinson, 17 How. 170; Whitridge v. Dill, 23 How. 448; Thorp v. Hammond, 12 Wall. 408; Hazlett v. Conrad, 1 Dillon, 79; McGrew v. The Melnotte, 1 Bond, 453; 1 Bond, 459; 2 Bond, 234; The Magenta, 2 Abbott C. C. 495; 5 Blatchf. 247. See also The Brig Emily, Olcott, 132, affirmed in the Circuit Court, 1 Blatchf. 236; The Pilot-boat Blossom, Olcott, 188; The Scioto, Davies, 359; The Ferry-boat Baltic, 2 Benedict, 98; The Steamboat St. John, Ib. 192; The Propeller Gratitude, 3 Ib. 108; The Schooner Forest Queen, 3 Ib. 181; The Steamer Cambria, 3 Ib. 334; The Sloop John H. Abeel, 4 Ib. 58; The Schooner Wanata, 4 Ib. 310; The Northern Indiana, 3 Blatchf. 92; The St. John, 7 Ib. 220; The City of New York, 8 Ib. 194; The Comet, 9 Ib. 323; The Atlas, 10 Ib. 459; The A. G. Brooks and Alice, 1 Low. Dec. 299; Reed v. Steam

      boat New Haven et al., 18 How. Pr. 482; The Mellona, 11 Jurist (C. S.) 784; The George, 9 Jurist, 670; The Iron Duke, 9 Jurist, 476; The Diana, 1 W. Rob. 131; 4 Moore P. C. 11; The Europa, 14 Jurist, 627; 1 Pritchard Adm. Dig. 144; The Urania, Swabey’s Adm. 253; The Vienna, Ib. 405; 1 Lushington, 327; 1 Blatchf. & H. 347; 12 Wall. 408.
    . IV. The Rebecca was guilty of contributory negligence by running at full speed just above and through the piers, and very near the wharf at Parkersburg. McCreary v. Goldsmith, 18 How. 89; Rogers v. Steamer, 19 How. 108; The Syracuse, 9 Wall. 672; Ib. 630; Steamer Louisiana v. Fisher, 21 How. 1; 3 Blatchf. 92; 8 Blatchf. 194; 9 Blatchf. 323; Ib. 451; 23 Wall. 20; 18 How. Pr. 482; The Electra, 1 Bin. 282; 2 Ib. 371; 3 Ib. 173; 4 Blatchf. 441; The Rose, 2 W. Rob. 1; The Pepperell, Swabey, 12; The Dispatch, Ib. 138; The Perth, 3 Hogg (8 Eng. Adm.), 414; The Sylph, 2 Spinks, 75; The Vivid, Swabey, 88; The James Watt, 2 W. Rob. 270; 3 Ib. 81; The Gazelle, 1 Pritch. 187; The Europa, 1 Pr. Adm. Dig. 186; 5 Eng. Adm. 633; 2 W. Rob. 201; 7 Jur. 1174; 3 W. Rob. 49; 12 Moore C. P. 148; The Great Eastern, B. & L. 287; Shirley v. The Richmond, 2 Wood, 58; 3 Otto, 405; Brown’s Admiralty Cases, 56.
    V. It can not be successfully contended that the absence of a light was causa proxima, and the absence of a lookout, or the excessive speed, or deviation from the channel of the Rebecca, only causa remota.

    1. Because the barge being moored, and having no power of locomotion, presumptively the fault was with the steamer. Mills et al. v. The Nat. Holmes, 1 Bond, 352; The Beaver, 2 Benedict, 118; The D. S. Gregory, 6 Blatchf. 528.
    There are so many other English and American eases to the same effect, digested in 1 Pritchard’s Admiralty Digest, 172, et seq., and cited in the notes, that we take the liberty of referring to that work instead of the reported cases. See also 1 Conkling’s Admiralty, 394.

      2. Because in a multitude of authorities it has beeu decided that in such cases the absence of a light, if blameworthy, only makes a case of mixed fault, for which, in admiralty, the vessel without the light must divide damages, or, at law, can not recover or be recovered from.
    But the cases all agree that censurable want df light on one side, combined with want of vigilant lookout, or too great speed, or improper place of running on the other, makes a case of mutual fault. The Continental, 14 Wall. 345; The Gray Eagle, 9 Wall. 505; Owners of Brig James Gray v. Owners of Ship John Frazer et al., 21 How. 184; Chamberlain et al. v. Ward et al., 21 How. 548; Rogers et al. v. Steamer St. Charles et al., 19 How. 108; The Parkersburg, 5 Blatchf. 247; Cohen et al. v. Brig Mary T. Wilder et al., Taney’s Dec. 567; Lenox v. Winisimet Co., 1 Sprague’s Dec. 160; Kelly et al. v. Cunningham et al. 1 Cal. 363; The Victoria, 3 W. Rob. 49; The Urania, Swabey, 253; The Aurora and the Robert Ingham, 1 Lush. 327; Hay et al. v. La Neve et al., 2 Shaw’s Scotch Appeal Cases, 395.
    These cases are mostly from courts of admiralty; but that the rule in admiralty and at common law is the same in cases of mutual fault, except that, in the former, the loss is divided, whei’eas, in the latter, no recovery at all is permitted, is shown by the cases of The Carroll, 8 Wallace, 302; The Farragut, 10 Ib. 334; The Fannie, 11 Ib. 238; Wilson v. The Envoy, 1 Phila. 138; The Havre and the Scotland, 1 Benedict, 295, 303; Ralston v. The. States' Rights, Crabbe, 22; The Eliza and Abby, 1 Blatchf. & Howl. 435.
    That measure or amount of negligence is contributory in law, so as to defeat a recovery, which consists in the omission of some duty, which, if performed with ordinary care, would have averted the disaster. Butterfield v. Forrester, 11 Bast 60; Bridge v. Railroad, 3 M. & W. 244; Davis v. Mann, 10 M. & W. 546; Thorogood v. Bryan, 8 M. G. & Scott (C. B.), 115; Tuff v. Warman, 2 C. B. 740, 755, 756; Timmons v. Railroad, 6 Ohio St. 105; Railroad v. Methven, 21 Ohio St. 586, 592; Railroad v. Stallman, 22 Ohio St. 1; The Milwaukee, Brown’s Adm. Cas. 313; The Masten, Ib. 486; The

      Favorita, 18 Wall. 598; The Falcon, 19 Ib. 75; The Pennsylvania, Ib. 126.

      Matthews, Ramsey & Matthews, for defendants in error:
    I. It is patent on tbe face of the act under which this bridge was built that the plaintiff in error can take no benefit from it, but what has always been conceded — that which makes the bridge a lawful structure.
    Only those rights of navigation were taken away, which were necessarily curtailed, by the building of the bridge.
    If the act of Congress enjoined all that is claimed, it would not alter the principle of the common law that one who, by his negligence, injures another, must respond in damages, the maxim, “Sic uter tuo uter alienum nonlaedas” is not abrogated, for the benefit of the Baltimore & Ohio Railroad Company.
    Even a trespasser has rights entitled to protection. Bird v. Holbrook, 4 Bing. 628; Illott v. Wilkes, 3 B. & Ald. 304.
    As to the claim of counsel for plaintiff in error, that it was not necessary to designate the barge by any signal; and that because the space between piers 2 and 3 was not in the usual track of navigation, the defendant below had no reason to apprehend her coming there, and hence was not bound to any degree of care with respect to her, we say: In a certain sense this is true; no man could be called negligent, for not building his house so as to afford protection from-hail stones as large as a flour barrel, because such never have come, though they may come ; the reason a man would not be liable in such case where otherwise he might be, is, that he is not negligent, so that the element of improbability does not in itself excuse, but simply enters into the conclusion as to whether or not the defendant is negligent. In other words, it is one fact which furnishes an inference for or against the existence of another fact, to wit, negligence, and not a legal principle at all. This matter is treated of in Wharton on Negligence, § 16, et seq.; Simpson v. London G. O. Co., L. R., 8 C. P.
      390; Higgins v. Dewey, 107 Moss, 494; Smith v. Railway Co., 6 L. R., C. P. 14.
    II. We deny that the plaintiff below was guilty of contributing to the injury.
    The first two charges of this description really comprehend the same act, viz: The passing between piers 2 and 3, instead of between 3 and 4 or 4 and 5. In answer to this we claim :

      First. That the Rebecca had-a right to pass just where she did.

      Second. That she was there by reason of the insufficiency of the lights on the piers, and from other causes over which she had no control.

      Third. If her act were negligence it did not contribute to the injury.
    As we make the latter claim with reference to all other acts of contributory negligence charged upon the plaintiff’ below, we will defer the discussion of that point for the present.
    The Ohio river is a public navigable stream. Penn v. The Wheeling Bridge Co., 13 How. 518.
    The obstruction of such a stream is a nuisance. 4 Black Com. 167; Georgetown v. Allen’s Canal Co., 12 Peters, 91; Addison on Wrongs, 146; The Queen v. Betts, 16 Q. B. 1022; Rex v. Ward, 6 Nev. & M. 38; Woolrych on Waters, 192; Reg. v. Randall, 1 C. & M. 496; 4 Broom v. Hadley’s Com. 196; Rhodes v. Otis, 33 Ala. 578.
    And hence the obstruction of the river to a greater degree than allowed by the act of Congress might probably not render the whole structure a nuisance, but the excess would certainly be so held.
    If the placing of the barge where it was, was a nuisance, we do not understand that the law requires that negligence on the part of the party who maintains the nuisance should be shown. Addison on Wrongs and Remedies, 174.
    All hindrances or obstructions to navigation, without direct authority from the legislature, are public nuisances. Knox v. Chaloner, 42 Me. 150.

      “ A river is a common highway, or, as Lord. Coke expresses it, a common river is as a common street.” Woolrych on Waters, 64.
    And hence we claim that the public right of navigation extends to every part of the river that is in fact navigable. This arises from the very nature of the river, as, wherever this right is spoken of, it is invariably, in cases and. textbooks, spoken of in unrestricted terms, as a right of navigation upon the river, and not upon any particular portion of it. Boats, in passing each other, approaching wharves, avoiding bars and other natural obstructions, actually do and are compelled to use every portion of the river, and it would be just as wrong to hold this right as circumscribed by anything except the natural capacity of the water to float boats, etc., as to hold that travelers should use only certain portions of a turnpike or street. Mayor of Colchester v. Brooke, 7 Ad. & E. (N. S.) 372; Williams v. Wilcox, 8 Ad. & E. 314; Washburn on Easements, 396; Scott v. Wilson, 3 N. H. 320; Adams v. Pease, 2 Conn. 481; Berry v. Carle, 3 Me. 269; Spring v. Russell, 7 Me. 273; French v. Camp, 18 Me. 433; White v. Crisp, 10 Ex. 312; Lewis v. Felling, 1 Joues’ L. (N. C.) 299; Kean v. Stetson, 5 Pick. 492; Queen v. Betts, 16 Q. B. 1022; Angell on Watercourses, §§ 540, 556, 557; Dwinel v. Barnard, 28 Me. 554; Argument in State of Penn. v. The Wheeling Bridge Co., 13 How. 518; Washburn on Easements, 406; Abbott on Shipping, 606, note e, Cashier v. Dr. Franklin, 1 Minn. 73; Commonwealth v. Fisher, 1 Penn. 462; Dimes v. Petley, 15 Q. B. 275 (the latter being a very important case in the connection); Mayor of Colchester v. Brooke, 7 Ad. & E. (N. S.) 339; Brownlow v. Board of Public Works, 106 E. C. L. R. 789; Porter v. Allen, 8 Ind. 1.
    The Rebecca had a right to go between piers 2 and 3, in the exercise of a right of property; the right may have been exercised in a negligent manner, but that the mere exercise of this right was negligence, as matter of law, is not only unsupported by reason or authority, but the authorities are quite to the contrary. Cook et al. v. The Champlain Transportation Company, 1 Denio, 91.
    If the Rebecca did go between piers 2 and 3, we claim that the evidence clearly shows that boats frequently passed between those piers ; that it was perfectly safe to pass between them; and that if she did go between those piers at the time of the disaster, she was brought there by the deception practised upon her by the bridge lights.
    III. We deny that the plaintiff below was negligent in the matter of a competent lookout. There was a watch on the boat, on duty at the time of the accident, and there is no settled rule, even in maritime law, as to the position to be taken by the lookout. The Ottawa, 3 Wall. 268; The Northern Indiana, 3 Blatch. 92; Chamberlain v. Howard, 21 How. 548.
    In determining the sufficiency of a lookout, regard is to be had to the size and circumstances of the vessel. The Morning Light, 2 Wall. 550; Parson on Admiralty, 576-578.
    TV. In regard to speed. As a matter of fact, tbe going between the piers at a full rate of speed was not negligence. The majority of the experts who were examined on this point stated that it was the usual and proper way of passing them ; assigning as reasons that the boat under a full headway was handled more easily, and on account of the strong cross-current she would be very liable to strike one of the piers unless the boat kept up her speed.
    V. The plaintiff below was not guilty of contributory negligence, or in other words, even if the officers of the boat were negligent in any or all the respects claimed, that negligence did not contribute to the injury.
    The use of ordinary care is the application of such a degree of foresight and prudence to an undertaking as persons of ordinary prudence are in the habit of applying under like circumstances in order to bring to a successful completion that about which they are engaged.
    It is pretty evident, in this case, that if the barge had not been where it was the undertaking in which the Rebecca was engaged would have been brought to a successful completion.
    When the pilot of the Rebecca saw no light indicating danger between piers 2 and 3, he was authorized to conclude that that which was not indicated did not exist, so had the lookout, and such efforts as would have carried them safely through, if the barge had not been there, were all that were requiredthey were not required to stop and dredge the spaces between the piers. Men usually act on what they see and hear. The absence of a light from that barge was a representation to all navigators that the space was unobstructed, and if any-acted on it, who is to blame?
   Wright, J.

The point first to be considered is the jurisdiction of the court. The B. & O. R. R. Co., defendant below, is a foreign corporation. The code provides (section 68), that when the defendant is a foreign corporation, having a managing agent in the state, service may be had upon such agent.

We agree with the view taken by counsel for defendant in error, that the tendency of legislation and the policy of the law is to facilitate the obtaining of service upon foreign corporations. Their business brings them in such close connection with the people of our state, that it is desirable they should be made amenable to our laws as far as practicable, instead of having our citizens to seek other jurisdictions in which to enforce their rights. The amendment in 1868, made to § 66 (S. & S. 542), shows this to have been the purpose of the legislature. This amendment affords additional facilities for suing domestic corporations and such foreign ones as are therein described.

The court below found that Heckert was a managing agent, and we can not say that it is proper to disturb that finding upon the evidence, and the case of American Express Co. v. Johnson, 17 Ohio, 641, leaves little to be said upon the law relating to this question.

There was therefore no error in overruling the motion to quash and set aside the service.

Coming now to the general merits of the case, it is alleged in the petition, that the Bridge Co. or the B. & 0. R. R. Co. were chargeable with negligence in not having lights or signals or a watch upon the barge. Indeed this omission seems to be the only ground upon which the right of recovery is rested.

The court indicated pretty clearly its opinion to be that it was the duty of the Bridge Co. to keep such lights or signals. A charge was asked by defendant below to the effect that under the law authorizing the building of the bridge, the company was allowed to obstruct navigation so far as was reasonably necessary in the prosecution of the work, if they left sufficient waterways, plainly designated, for steamboats. To this request, the court appended a qualification, stating that such obstructions were allowable in a navigable part of the river, provided they were lighted so as to give warning of their presence. And in the proviso to the 7th charge, the court indicates htat the barge should havé been lighted.

We do not, however, deem it absolutely clear that the barge was bound to keep -a light. Without going into elaborate quotations from the authorities, we think the law may be held to be, that where a vessel is anchored at night, right in the usual pathway of other vessels passing and repassing, a light is necessary as an act of prudence; but when anchored out of this usual pathway, a light is not absolutely necessary, apart from harbor regulations. A vessel coming into port is bound to keep in the proper and usual track of navigation, and if, straying therefrom, she should run down another, it would not be sufficient excuse for her to say that the vessel she thus sank displayed no light.

These rules will be found established by an' examination of the following authorities: Culbertson v. Shaw, 18 How. 584; The Bridgeport, 14 Wall. 116; Ure v. Coffman, 19 How, 56; Blue Wing v. Buckner, 12 B. Mon. 246; The Granite State, 3 Wall. 310; Owen Wallis’ L. R. 4 Adm. Ex. 175; Simpson v. Hunt, 6 Whart. 324.

In The Scioto, Davies 368, Ware, J. says “that a vessel lying in the channel, where vessels are often passing and repassing, ought, in common prudence, to show a light during the night time, though when out of the channel it may not be required.” And the English rule is that vessels anchored in the channel should he protected by lights. The Industrie, L. R. 3 Adm. and Eccl. 308; Saxonia, Lush. 410.

These rules and these authorities, however, apply more particularly to cases of simple collision between vessels, where their own acts aloné are considered. But in this case a consideration is involved, not existing in ordinary collisions, and that is the fact of the bridge and the rights arising under its authorized construction. Had there been no bridge there, and no construction of it begun, and had this barge been simply anchored out in the river, without lights, and in a place where it is usual for boats to run, it would doubtless be more difficult for her to defend herself from the imputation of neglect than it is under the circumstances being considered.

The construction of this bridge was authorized by act of Congress. Such things as were reasonably necessary to be done, in the progress of that construction, were lawful. Doubtless the Ohio river is a navigable stream, as the court held in 13 Howard; but it is also without doubt, that the bridge, being a structure authorized by law, it was but the exercise of a right to obstruct navigation, in so far as its erection occasioned a necessity therefor. This barge therefore might properly be used, and one of its prerogatives was, to interfere with the movements of other vessels, if its work could not be done without. It is hardly a correct use of language to speak of the barge as a nuisance, even moored where she was and without a light. She had a right to be moored, if in the prosecution of her work it was necessary, or even convenient, and the absence of a light did not make her a nuisance until it is shown that it was incumbent upon her to maintain one. The case is very different from that of Porter v. Allen, 8 Ind. 1. In that case a log endangered defendant’s property, and he towed it to another part of the river and there left it, and a steamboat struck it and sunk. The log, indeed, was not left in the channel, but defendant was acting as a trespasser in doing what he did; for the court holds that he had no light to leave the log where boats could and did go. But the barge certainly bad a right to be in the river, and to be just where she was.

As has been remarked, it can not be said she was a nuisance where she was, at least, until it is shown that she was bound to display a light. If this be first satisfactorily ascertained, and this omission of duty solely occasioned the disaster, then there is a negligence for which defendant would be responsible. But in determining whether the absence of a light is such negligence, it should be inquired whether a person of ordinary prudence would consider a light necessary, then and there, to warn steamboats oft'. It was a place, it is true, where steamboats could go, so far as depth of water is concerned. But sufficient water is not the only thing necessary to successful steam-boating; circumstances of safety are also required. The ordinary channel was a long distance off — between piers 3 and 4. Boats rarely, if ever, came between piers 2 and 3 and this fact would be taken into account by a man of prudence, iu making up his judgment, as to the necessity of a light on the barge. He might well reason, that as boats never come in this vicinity, a light is simply useless. A light is to no purpose on a pathway that is never traveled.

The question of negligence is to be determined by the consideration, whether or not a party has guarded against those things which he might reasonably have cause to anticipate. Blackburn, J., in Smith v. Leuchie & S. W. R. R., L. R., 6 C. P. 14.

While, therefore, the mooring the barge in the well-known channel might charge her owners with knowledge of the fact that her position was a dangerous one to other vessels, and so might make the absence of a light a circumstance of negligence, upon the other hand, the fact that she lajr where pilots didnot ordinarily run their boats, goes to show‘that the same necessity for lighting did not exist, and that a failure, in this respect, was not, of course, a want of prudence.

But even conceding that the omission to light the harge was negligence, was it that causa próxima which occasioned the disaster ? This requires an examination of the alleged acts of negligence in the steamboat Rebecca; for, if these were such that the collision would have occurred, light or no light, the fault would be attributed to plaintiff.

The plaintiff in error alleges that there was contributory negligence on the part of the Rebecca in these particulars :

1. In leaving what was the usual channel for steamboats, which was between piers 3 and 4 and 4 and 5, and passing to the West Virginia side, between piers 2 and 3, where boats were not accustomed to go.

2. In not maintaining a sufficient lookout.

3. In running at full speed, just above and through the piers.

We will consider these alleged grounds of negligence :

First. As to leaving the usual channel.

As to this, it is very clear that the usual channel was between piers 3 and 4 and 4 and 5. It is questionable if a single instance is shown of a descending boat going between piers 2 and 3. One or two s'ay they have seen such a thing; but certainly, the great preponderance of the evidence is that boats avoid that course. Pier No. 4 stands in about the deepest part of the river, and is generally designated by pilots as standing in the channel. The spaces between piers 3 and 4 and 4 and 5 are spoken of as the “ channel spans.” The lights on these piers are spoken of as indicating the channel.

Here is the deepest water of the river, and here is the widest waterway, being 137§ feet wider than the distance between the other piers. The river men contributed $30,000 to have the spans widened and for a second channel span, as the law provided that there should be a channel span of not less than 300 feet and the next adjoining not less than 220 feet. These two, therefore, were made, each 322f feet in width.

Another reason governing the course of boats about to land at Parkersburg was, that by running piers 3 and 4 or 4 and 5, a wider berth was given to round to upon the West Virginia shore, whereas a boat running piers 2 and 3 would be compelled to hold over to the Ohio shore again to make the necessary turn for a landing.

It is, therefore, proper to say that the proof shows that the ordinary and usual channel is between 3 and 4 and 4 and 5. It is true that there is plenty of water between 2 and 3, and counsel for plaintiff below maintain that “ the right of n avigation is only limited by the capacity of the water to float a boat,” and therefore claim that the Rebecca had the right to go where she did.

It may be, as far as mere legal right is concerned, that the Rebecca had the right to run any couise she chose, but the fact that she was sunk in so doing suggests the query whether or not she was prudent in the exercise of all her rights. One may have the right to do a given thing, still it may not be wise or prudent to do it. It may undoubtedly be said that a boat may run anywhere she can, so far as her own rights merely are concerned; but when we come to consider the rights of others, the proposition is not so clear. The law of the Mississippi ri ver is that the ascending boat must run near the shore, the descending boat in the middle of the river. Eor violating this rule, in Shirley v. Richmond, 2 Woods, 58, a boat was condemned. The Richmond was coming up within one hundred and fifty yards of the east bank, and the Sabine run her down. The Sabine was made liable for the damages, and it was not sufficient defense that she was exercising the right of going wherever the water was sufficient.

The cases of the John L. Hasbrink, 3 Otto, 405, and Goslee v. Shute, 18 How. 463, show that vessels are liable in damages for collisions, from the fact that they are at the time out of the ordinary and usual course of navigation.

The law of the sea and river has established certain rules and regulations with reference to the running of vessels, and the right to go wherever there is water enough must be governed by such rules and regulations. Williamson v. Barrett, 13 How. 101; 1 Parsons on Shipping and Admiralty, 583, n. 1.

The very fact that these rules are established by statute, by boards of inspectors, and by custom, show that there is and must be some limitation upon the right of a vessel to run wherever she may see fit, provided she can.

It is obvious that if this boat had the right to run wherever there was sufficient water to float her, every other vessel had a similar prerogative, and there must be some law to control and regulate rights that in their nature conflict. Angelí on Watercourses (sec. 541a) says:

“ The general doctrine to be deduced from the authorities in reference to the use of navigable rivers or public streams as public highways, is that each person has an equal right to their reasonable use. What constitutes reasonable use depends upon the circumstances of each particular case, and no positive rule of law can be laid down to define and regulate such use with entire precision, so various are the subjects and occasions for it, and so diversified the relation of parties therein interested. In determining the question of reasonable use, regard must be had to the subject-matter of the use, the occasion and manner of its application, its object, extent, necessity, and duration, and established usage of the country. . . . Every person has an undoubted right to use a public highway, whether upon the land or water, for all legitimate purposes of travel and transportation; and if, in so doing, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrong-doer, his acts are not illegal, and he creates no nuisance for which au action can be maintained.”

Inasmuch, therefore, as the Rebecca had departed from the usual and ordinary channel, and as it can not be successfully maintained that she might run anywhere in the river simply because there was "water enough, and without reference to the rights of others, we must inquire what it was incumbent upon her to do in entering upon and continuing in her unaccustomed course.

The steamboat might use any part of the river before the bridge was authorized or the piérs built; but when these became accomplished facts, the steamboat was certainly shorn of some of her privileges. It was certainly her duty in descending the river to pass the locality of the bridge with greater care than was used before its construction ; for, whereas she might have run just where pier No. 4 now stands, she can do so no longer, and her right of passage generally is restricted to the spans, it being without such restriction before. If the construction of the bridge curtailed the rights of the boat as to that part of the river recognized as the usual channel, what effect did it have as to that part of the river which was not the usual channel? Manifestly in running the usual and ordinary course, usual and ordinary care was required. Rut where an unusual course is taken, one not the ordinary course of navigation, clearly a degree of caution is required more than usual, more than ordinary, and corresponding with the new risks which are taken.

Perhaps the pith of the law on this subject can not be better stated than it is in Pluckwell v. Wilson, 5 C. & P. 375: “A person driving a carriage is not bound to keep on the regular side of the road; but if he does not, he must use more care, and keep a better lookout to avoid collision than would be necessary if he were on the proper part of the road.”

Upon this phase of contributory negligence, defendant asked charges 13, 14, and 15, and made the exceptions 5, 6, and 7. Exception 7 was to a portion of the charge, saying, in effect, that the boat had as much right to run through one span as through another; and nowhere in the charge do we find it indicated that more care was required in one passage than in another. And the jury might well have thought that the steamboat was held to no greater caution in passing between piers 2 and 3 than between 3 and 4. They should have beeu told that when the pilot forsook the usual and ordinary channel and took another, more care was required than when he was following the well established route.

It does not appear that any such extra care was taken, and its omission might well be considered contributory negligence; and as the chax-ge does not call attention to this requirement, we think it was erroneous in such omission.

The court seemed to be of the opinion that the only negligence on the part of the steamboat, nesessary to be considered, was that occurring at the moment of the collision.

In charge 6, excepted to, it holds the boat to “ ordinary care exercised after the discovery of the barge.” And again, upon the subject of the lookout, it is said : “ If the jury are satisfied that such watch was omitted, and that such omission at the time of the collision contributed,” etc. Thus confining the question of negligence, on the part of the boat, to what happened at the time of, or just before, the collision, and ignoring all consideration of the imprudence, unskillfulness, or carelessness of the pilot in bringing his vessel into such a position as rendered the catastrophe inevitable. If one is inconsiderate enough .to voluntarily bring himself into circumstances of danger, it does not relieve his fault that he does all in his power to pi’event accident when the lateness of such efforts necessarily renders them fruitless. As is said in The Vanderbilt, 6 Wall. 226: “Unless precautions are seasonable, they constitute no defense.”

In 1 Parsons on Ship, and Adm. 529, it is said : “Nor is it enough to show that the collision could not have been prevented at the moment, if it might have been by previous precautions.”

In The Virgil, 2 W. Rob. 205, Lushington said: “ If a vessel charged with having occasioned a collision should be sailing at the rate of eight or nine miles an hour, when she ought to have proceeded only at the speed of three or four, it will be no valid excuse for the master to aver that he could not prevent the accident at the moment it occured, if he could have used measures of precaution that would have rendered the accident less probable.” Steamboat New York v. Rea, 18 How. 225; The Clement, 2 Curtis C. C. 363; Wakefield v. Governor, 1 Cliff. C. C. 93-97; Genessee Chief, 12 How. 461.

The jury, therefore, should have been called to consider, not only whether the boat exercised the required degree of care at the moment of, or just before, colliding, but they should have also been told to examine whether, under all the circumstances, the pilot had exercised proper skill and judgment in bringing his boat where she was. Whether such skill and judgment would have' led him to fox-sake the usual and safe course, for one unusual and proving to be unsafe. Whether, after leaving the channel,. he so conducted his vessel, in the matter of her speed, and of watchfulness, as the exigexxcies of a position not usual •and ordinary rendered imperative.

The next matter urged as a circumstance of contx-ibutory negligence, is the want of a proper lookout.

The captain, who, it appeai-s, had been performing this, indiscriminately with his other duties, had quit his labors and gone to bed. The second mate was then filling the office of lookout, upon the hurricane roof, but at the precise moment that his services wex-e most required, when the dangerous appx-oaeh toward the bridge piers demanded his highest vigilance, he ceased it altogethex-, and went off to attend to other matters. The excuse or reason given for this very extraordinary performance on the part of the mate, if he is to be considei-ed as filling the character of lookout, is, that the x-oustabouts who wex-e to get out the freight at Pax-kersbux-g were asleep downstairs, and upoix being summoned, were defective in alacrity, whereupon the mate left his post, aud went below to wake them ujx.

Upon this state of fact, the coux-t ehax-ged the jux-y to inquire, if any officer was on watch: “ Whether he was at his usual place, or if not, whether other duties called him elsewhere in the boat; for wherever the duty of a person on watch.calls him, that, for the time being, is his proper place.”

We understand that the place, as well as the duties, of a a lookout are properly designated by his title. His office is important, and can not be confounded with anything else. Hpon this, authorities are very clear.

In The Ottawa, 3 Wall. 273, the court say: “Steamers are required to have constant and vigilant lookouts stationed in proper places on the vessel, and charged with the duty for which lookouts are required, and they must be actually employed in the performance of the duty to which they are assigned. They must be persons of suitable experience, properly stationed in the vessel, and actually and vigilantly employed in the performance of that duty.” The syllabus of the same case is as follows:

“ Lookouts must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of their duty. When acting as officer of the deck, and having charge of the navigation of the vessel, the master of a steamer is not a proper lookout, nor is the helmsman. Lookouts should be stationed on the forward part of the vessel, where the view is not in any way obstructed. The wheel-house is not a proper place, especially if it is very dark, and the view is obstructed.”

In The Comet, 9 Blatch. 327, it is said : “ In such circumstances, and in view of other suggestions presently to be made, the importance of a lookout, especially devoted to that duty and vigilant in its performance, can not be overstated.” And again : “ It is not necessary to repeat, what has so often before been said, that in circumstances calling for the watchful vigilance of a lookout, the master, or the mate, charged with the general management of the vessel, is not competent to act at the same time as lookout..” Chamberlain v. Ward, 21 How. 570.

In the case of “ The Northern Indiana,” 3 Blatch. 106, it is said : “ The watchman, or man of all work, who esteemed it his doty to lookout ahead only when .he could find nothing else to do in discharging his multifarious duties, was not a proper or sufficient lookout, even'if he had the competent skill for that service. The mate was the officer of the deck, holding the temporary command of the vessel, and continually liable to be called to the discharge of duties inconsistent with the keeping of a constant and vigilant watch ; and he ought not to have been relied upon for that purpose. In such a steamer as the Northern Indiana, his proper duties, as officer of the dock, -would materially interfere with the attempted discharge of the additional duties of a lookout, and render him less reliable for that purpose than the person at the wheel, who, it has been seen, is always held insufficient. If the officer of the deck assumes to act as the lookout, the proof must be clear and satisfactory that he was, during all the time a lookout was material, in the proper position, and constantly and vigilantly discharging that duty.” The New York v. Rea, 18 How. 223; The Catharine v. Dickenson, 17 How. 110.

Authorities like these might be multiplied to any extent, rand they clearly show that a lookout is not a lookout when ¡he is attending to any other business. That portion of the •charge, therefore, which in its statement allows the jury to ¡suppose, that when the lookout, though engaged in other matters than that of a constant, vigilant watch, is still in ■the performance of his duties, and that the requirements <of the law are thus fulfilled, is misleading.

The tenth proposition excepted to was this: “ Ton will .also find from the evidence whether, if the person on watch :had been at his usual place, he would probably have been .able to discover the barge, on such a night, in time to have avoided a collision and consequent injury. If you find that •he would not, his absence would not be such negligence as •would prevent the plaintiff from recovering.”

This was calculated to convey a false impression. Where ■a vessel is guilty of such a fault as the want of, or an in■sufficient lookout, and an accident happens, she must show, mo.t only .that such fault did not probably contribute, but that it could not by any possibility have done so. Dr. Lushington says, in The Mellona, 11 Jur. 784 :

“I am of opinion, in point of law, that if there has been previous negligence in keeping a good lookout, then that party is responsible for all the consequences which might, by possibility, have been prevented. If, indeed, a party is to blame, but by no possibility whatever could injurious consequences result from that culpability, then the court might not hold him responsible.”

In the case of The Pennsylvania, 19 Wall. 126, the rule in the case of the violation of a duty prescribed by statute, is stated thus : “Although if it clearly appears that a fault committed by a vessel has had nothing to do with a disaster which has occurred, the liability for damages is against the vessel alone which has produced the disaster, still where the vessel has committed a positive breach of statute, she must show not only that probably her fault did not contribute to the disaster, but that it certainly did not, that it could not have done so.”

To this effect also are The Brig Emily, Olcott, 138; Northern Indiana, 3 Blatch. 92; The Atlas, 10 Blatch. 459; Reed v. Steamboat New Haven, 18 How. 482.

Tlie numerous authorities cited show that a lookout is indispensable, and that an omission in this particular is held by the admiralty courts to be negligence, as matter of law. Negligeuco is generally a mixed question of law and fact, to be submitted to the jury, under proper instructions. But where the facts are admitted or undisputed, the question of negligence becomes one of law.

In cases of persons injured at railroad crossings it is held that a failure to use one’s senses to discover the approach of a train, when so doing would have prevented an accident, is negligence, as a matter of law, and recovery can be had. Artz v. C. R. I. & P. R. R., 34 Iowa, 153; Gorten v. Erie R. R., 45 N. Y. 660; Reynolds v. Railroad, 58 N. Y. 248; Mitchell v. Railroad, 64 N. Y. 655; Railroad v. Crawford, 24 Ohio St. 631; Railroad v. Elliott, 28 Ohio St. 340; Pennsylvania R. R. v. Rathgeb, ante, 66.

We think, therefore, that the admiralty rule should be adopted as a rule of our common-law courts, and that tlie absence of a proper lookout should be held to be negligence, as matter of law, and that where an accident happens the party in fault in this particular will be responsible, unless able to show by clear and satisfactory evidence, that the injury could not possibly have been avoided, even if there had been a proper lookout.

Should it clearly appear that the absence of a lookout could in no way have affected the result, then a recovery can not be had, if such omission were'the only fault, as in the case of Shirley v. Richmond, 2 Woods, 58. There the court say: “But even if there had been no lookout, it would not alter the case, for the pilot of the Richmond (the defendant), saw the Sabine (plaintiff’s boat), as soon as she rounded the point, which was at as early a moment as any man on the lookout could have seen her.” And the syllabus of the case is, “A neglect to keep a proper lookout, which does notin anyway contribute to a collision, can not be alleged as a ground on which to recover damages caused by the collision.”

The third ground of alleged contributory negligence is the running of the Rebecca at full speed just above and through the piers.

It appears that the boat came on with a full head of steam, at the top of her speed, about fourteen miles an hour, and was running at that rate when she struck the barge.

Defendant asked the court to charge that if the usual course of navigation was to run the piei’s at a reduced speed, the boat was not justified in using full speed, and if by so doing the collision was occasioned, when the usual rate -would have avoided it, there could be no recovery. This was refused as asked, but was given with a qualification, and the court further left it to the jury to say whether this style of running was dangerous where obstructions were anticipated. But in the previous part of its chai’ge the court had in effect said that the barge ought to have had a light upon it, and without such light, the pilot was not expected to be on the lookout for it, or to anticipate its presence. The whole effect of the charge, as we regard it, being that the pilot might run at any rate he pleased, and it was not negligence. The court might not have meant, exactly this, but the jury might have easily inferred it.

On this subject it is said in The Pennsylvania 19 Wall. 134, quoting from the case of The Europa: “ This may be safely laid down as a rule on all occasions, fog or clear, light or dark, that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precautions at the moment she sees damage to be probable.”

That an undue rate of speed is made ground of condemnation is shown by numerous admiralty cases. Newton v. Stebbins, 10 How. 606; McCready v. Goldsmith, 18 How. 89; Rogers v. St. Charles, 19 How. 108; The Rose, 2 W. Rob. 2; The Syracuse, 9 Wall. 672; The Pepperrell, 1 Swabey 12; The Vivid, 1 Swabey, 88; The Despatch, 1 Swabey, 138; The Perth, 3 Hagg. 415.

Under all the circumstances of the case, therefore, we can not but think the pilot was guilty of negligence in not slacking his rate of speed. The evidence is apparently conflicting on the subject, whether it is best to slacken speed in running piers. But, after all, this conflict may be more apparent than real. We understand those who favor fast work, to say not more than this: That when the pilot is sure of his bearings, and knows that he is in the right course, then he may put on all steam. The reason given is that thus the danger is soonest over, the boat minds her helm better, and is not so apt to be carried by cross currents against the abutments. But certainly no boatman can mean to say that it is a desirable or prudent course of navigation to dash headlong at bridge piers, not knowing whether his boat is going between them or square into them. The pilot who would advise or justify such business would surely endanger the continuance of his license.

We can not therefore resist the conclusion that the pilot was guilty of negligence, to use no stronger term, in leaving the proper channel, as he did, with no lookout to assist him in his untried course, and running his boat at fourteen miles an hour, at a localiiy, the dangers of which at all times, and under most favorable circumstances, required a great degree of caution. And wo think the court should have called more particular attention to these facts, and not 'allowed the jury to suppose that the pilot, throughout the whole affair, only did what any pilot might have done, and would have been justified in doing.

But there is another fact in the case, a fact which impresses us as being one of the first and last importance, though it does not appear to have been so regarded in the courts below.

We have thus far treated the management of the pilot and discussed it, as though lie was perfectly sure of his course, and was running his boat under the direction of full knowledge and the best advised intelligence. But the fact was not so. It clearly appears that he did not know where he was. Piad he been blind, he could not have been more completely oblivous to all his surroundings, than he was, at the moment he struck. lie thought and still thiuks that he ran between piers 3 and 4, and that he struck something upon the Virginia side of No. 4.

Counsel for defendants in error appear to intimate a doubt as to the course the boat actually took, stating it hypothetically, “ if she did,” go between piers 2 and 3. If she did not, if she went between 3 and 4 and struck something moored to pier 4, there can be no recovery in this action, for it is not pretended that plaintiff in error had anything lying at that pier. But we think there can be no doubt about this, nor can there be any doubt of the pilot’s error.

At what point he lost himself, does not appear, nor can it be made to appear, as he does not yet seem to know that he was lost. But it must have been some distance above the bridge, probably half a mile or more, when his mistake began.

Can there be any possible degree of prudence or care in running a steamboat through dangerous places of navigation, at full speed, with no watch, in the night time, under the guidance of a pilot who does not know where he is nor whither he is goiug?

We have endeavored to show that running a boat thus, when managed intelligently would be a grave error; how much more so, when to all this is superadded the further fact, of total ignorance of localities. The court below does not seem to have laid stress upon this all important fact, as should have been done. It illustrates the case in some of the points we have been considering. As to the claim the pilot makes that there should have been a light ou the barge, and if there had been the accident would not have happened. As he explains himself, the trouble with him seemed to be not too few lights but too many, and it is therefore difficult to see how more could have helped him. Having clearly mistaken his course, he endeavors to account for that mistake by saying that he saw the pier lights, but there were some other lights upon a certain steamboat lying at the Parkersburg wharf, resembling the pier lights iu appearance, elevation and other particulars, and these confused and caused him to lose his reckoning. As.he was already wildly astray as to where he was going, it is not certain but that more lights might have increased his confusion, instead of having any opposite effect.

The relation of this mistake of the pilot to the question of a necessity for a lookout is obvious. Had there been an intelligent officer upon the hurricane deck, or in any other place proper for a lookout, and had he been wide awake, it •is hardly within the range of possibility that ho should not have been able to discover the pilot’s error, in time to have avoided danger. Either he would have discovered the mistake or demonstrated his own incompetency, as the pilot has done. No better case could be found, than this one, for illustrating the propriety and wisdom of the' admiralty rules upon this subject. When the-court said to the jury: You will also find from the evidence whether if the person on watch had been at his usual place, he would have been able to discover the barge, on such a night, in time to have avoided the collision and consequent injury. If you find that he would not, his absence would not he such negligence as would prevent the plaintiff from recovering it would have been more pertinent to have said that the absence of a lookout was an error in point of law. Thus much having been premised, it is apparent that in point of fact the error was fatal in its consequences.

Eor the errors to which we have referred, we think the judgment of the court below should be reversed.

Judgment reversed.