If the engineer, after discovering or recognizing the defective condition of the cow-catcher or pilot, had continued to use the engine, without giving proper notice thereof to the proper officers of the company, he would undoubtedly have been guilty To guard against misapplication should be remedied. According to of these principles we should say the instructions, if the engineer used that the corporation is not to be the engine with knowledge of the held as guaranteeing or warranting defect, the jury should find for the the absolute safety, under all cir- company, although he may have cumstances, or the perfection in all been justified in relying upon those of its parts, of the machinery or ap- assurances. paratus which may be provided for the use of employees. Its duty, in that respect, to its employees is discharged when, but only when, its agents whose business it is to supply such instrumentalities exercise due care as well in their purchase originally, as in keeping and maintaining of such contributory negligence as them in such condition as to be rea- to bar a recovery, so far as such desonably and adequately safe for use fect was found to have been the by employees. 110 Mass., 241; efficient cause of the death. He Wharton on Negligence, §§ 211, 212, would be held, in that case, to have 232a; 1 Macq., H. L. Cas., 748; 3 id., 288; 3 id., 307; 7 H. & N., 937; 35 L. T., 477. himself risked the dangers which might result from the use of the engine in such defective condition. The defect in the engine, of which But "there can be no doubt that, the engineer had knowledge, was where a master has expressly promthat which existed in the cow-catcher ised to repair a defect, the servant or pilot. It is not claimed that he can recover for an injury caused was aware of the insufficient fasten- thereby within such a period of ing of the whistle, or that the defect, time after the promise as would be if any, in that respect, was of such reasonable to allow for its performa character that he should have be- ance,and as we think, for an injury sufcome advised of it while using the fered within any period which would engine on the road. But he did not preclude all reasonable expectahave knowledge of the defective con- tion that the promise might be dition of the cow-catcher or pilot, and complained thereof to both the master-mechanic and the foreman of the round-house. They promised 289; 110 Mass., 241; Cooley on that it should be promptly remedied, and it may be that he continued to use the engine in the belief that the defect would be removed. The court below seem to attach no consequence to the complaint made by the engineer, followed, as it was, by explicit assurances that the defect the engine without it being removed. kept." Sherman & Redfield on Negligence, § 96; 62 Mo., 38; 76 Penn. St., 389; 20 Minn., 9; 33 Mo., Torts, 559; 2 Fos. & Fin., 535; 6 H. & N., 349; 7 H. & N., 942. We may add, that it was for the jury to say whether the defect in the cowcatcher or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the state, is in conflict with the National Constitution. Error to the Baltimore City Court, State of Maryland. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company By an act of the General Assemwill not be excused for the omission bly of Maryland, passed in 1827, to supply proper machinery, upon authority was given to the Mayor the ground of contributory negli- and City Council of Baltimore to gence. That the engineer knew of regulate, establish, charge, and colthe alleged defect was not, under lect to their use such rate of wharfthe circumstances, and as matter of age as they might think reasonable, law, absolutely conclusive of want of and from all vessels resorting to of due care on his part. 110 Mass. or lying at, landing, depositing, or 261; 49 N. Y., 521. In such a case or transporting goods or articles, as that here presented, the burden other than the products of that of proof to show contributory negligence was upon the defendant. 15 Wall., 401; Wharton on Negligence $423; 93 U. S., 291. Judgment reversed and cause remanded, with directions to set aside verdict, and award new trial. Opinion by Harlan, J. CONSTITUTIONAL LAW. Edward T. Guy, plff. in error, v· The Mayor, &c., of Baltimore. (Oct. 1879.) state, on any wharf or wharves belonging to that municipal corporation, or any public wharf in the city other than the wharves belonging to or rented by the state, and that of Pratt street wharf, theretofore reserved for the use of the citizens of that state. Maryland Code of Pub. lic Local Laws, art. 4, sec. 945. In pursuance of that act the city, by its constituted authorities, in the year 1858, passed an act regulating the public wharves. By its 33d section it is declared that all goods, wares or merchandise landed on the public wharves from on board any vessels lying at said wharves, or placed thereon for the purpose of No state can, consistently with the National Constitution, impose upon the products of shipment or exposure for sale, other other States, brought therein for sale or use, than the product of the State of or upon citizens because engaged in the Maryland, shall pay wharfage acsale therein, or the transportation thereto, cording to certain rates therein of the products of other states, more onerous public burdens or taxes than it im prescribed. The 35th section declares that "all vessels belonging to poses upon the like products of its own territory. or lying at, landing, depositing or transporting goods or articles other than the production of this state, wharf or wharves beany any mayor and city A state statute or municipal ordinance, in pur- ducts of other states, are required to pay said city, other than the wharves stitution, impose upon the products belonging to or rented by the state, of other states, brought therein for shall be chargeable with the wharf-sale or use, or upon citizens because age as fixed by this ordinance, upon engaged in the sale therein, or the all goods or articles landed or de- transportation thereto, of the proposited on any wharf or wharves belonging to the said mayor and city council; and the master or owner of the vessel so depositing, landing or transporting said goods or articles, shall be responsible for the same." The ordinance contained other sections providing for its enforcement. ducts of other states, more onerous public burdens or taxes than it imposes upon the like products of its own territory. 12 Wall, 418; 91 U. S., 275. Woodruff v. Parham, 8 Wall, 123, and Hinson v. Lott, id., 148, distinguished. The appellant, Guy, a resident The wharf at which appellant citizen of Accomac County, Virginia, landed his vessel was long ago dediwas engaged in the year 1876 in cated to public use. The public, sailing a schooner, of which he was for whose benefit it was acquired, or master and part owner, from that who are entitled to participate in its county to Baltimore, laden with po- use, are not alone those who may tatoes raised in Virginia. In June engage in the transportation to the of that year he landed his vessel at port of Baltimore of the products of one of the public wharves belonging Maryland. It embraces, necessarily, to the city (not the Pratt street all engaged in trade and commerce wharf), and discharged therefrom upon the public navigable waters of 220 barrels of potatoes. Under the the United States. Every vessel authority of the foregoing statute employed in such trade and comand ordinance the city harbor merce may traverse those waters master demanded of him the pay- without let or hindrance from local ment of $4.40 as wharfage. He re- or state authority; and the National fused to comply with that demand, Constitution secures to all so emand, being sued by the city, judg- ployed, without reference to the ment was rendered against him in residence or citizenship of the ownthe court of a justice of the peace, ers, the privilege of landing at the which was affirmed by the City port of Baltimore with any cargo Court of Baltimore, the highest whatever, not excluded therefrom court of Maryland in which a decision of the case could have been had. It is admitted that such wharfage dues are not, and never have been, assessed against parties or vessels bringing to that port potatoes or other articles grown in the state of Maryland. Held, error; that no state can, consistently with the federal con by, or under the authority of, some statute of Maryland enacted in the exertion of its police powers. The state, it will be admitted, could not lawfully impose upon such cargo any direct public burden or tax because. it may consist, in whole or in part, of the products of other states. But it is claimed that a state may empower one of its political agencies, In the exercise of its police pow a mere municipal corporation repre- wharves upon the public navigable senting a portion of its civil power, waters of the United States, and to burden inter-state commerce by quasi public corporations transportexacting from those transporting to ing the products of the country, canits wharves the product of other not be permitted by discriminations states, wharfage fees which it does of that character to impede comnot exact from those bringing to the mercial intercourse and traffic same wharves the products of Mary- among the several states and with land. The city can no more do this foreign nations. than it or the state could discriminate against the citizens and pro- ers, a state may exclude from its ducts of other states in the use of territory, or prohibit the sale therethe public streets or other public in of any articles which, in its judghighways. The City of Baltimore, ment, fairly exercised, are prejudiif it chooses, can permit the public cial to the health, or which would wharves, which it owns, to be used endanger the lives or property of its without charge. Under the author- people. But if the state, under the ity of the state it may also exact guise of exerting its police powers, wharfage fees, equally, from all who should make such exclusion or prouse its improved wharves, provided hibition applicable solely to articles such charges do not exceed what is of that kind that may be produced fair remuneration for the use of its or manufactured in other states, the property. 10 W. Dig. 521; 95 U. S., courts would find no difficulty in 80. But it cannot employ the prop- holding such legislation to be in erty it thus holds for public use so conflict with the Constitution of the as to hinder, obstruct or burden United States. inter-state commerce in the interest of commerce wholly internal to that state. The fees which it exacts to that end, although denominated wharfage dues, cannot be regarded, in the sense of our former decisions, as compensation merely for the use of the city's property, but as an expedieut or device to accomplish, by indirection, what the state could not accomplish by a direct tax, viz., NEGLIGENCE. REFERENCE. build up its domestic commerce by N. Y. SUPREME COURT. means of unequal and oppressive burdens upon the industry and business of other states. Nothing can be clearer than that the statute of Maryland and the ordinance of the City of Baltimore, in the respects adverted to, are in conflict with the power of Congress over the subject of commerce. Judgment reversed, with directions to dismiss the action. Opinion by Harlan, J. GENERAL TERM. SECOND DEPT. Mary A. Durkin, adm'rx., applt., v. Thos. R. Sharpe, receiver, respt. Decided September, 1880. Such exactions, in the name of wharfage, must be regarded as tax-The court has no right to compel a reference ation upon inter-state commerce. of an ordinary action brought to recover Municipal corporations, owning damages for defendant's negligence. Nor can a reference be claimed in such an action tained by the same accident out of brought against a receiver of a defendant which this action arose; that a railway on the theory that it is a proceeding to reach or effect a fund in court. The rights great mass of testimony was taken in the Brown case at great expense; of plaintiff, under such circumstances, are the same as if he were seeking to enforce a that the issues were alike on both personal instead of an official liability. cases, save additional testimony The defendant moved for and on a hear- would be admissible on account of ing obtained an order of reference here- the deceased being an employee of in referring this action to a certain ref eree, on a showing that an earlier action defendant. Plaintiff opposed the arising out of the same accident had been motion. The court ordered the retried before said referee; that the testimony ference, as moved for, directed the therein had been voluminous and expensive, use of the testimony in the Brown and that the referee's report was in plaintiff's favor. The order provided that either party might use the testimony taken in the former action as though taken in this one, and that the defendant should pay, without recourse, the referee's fees, and any additional stenographer's fee, and also limited the defendant as to his defense. Held, The court was not authorized to make such an order, and moreover, the other provisions thereof were unwarrantable. case, and that the defendant should pay, without recourse, the fees of referee, a stenographer, and that excessive speed of the train should not be claimed as contributory negligence on the part of the plaintiff. D. Mitchell and W. W. Badger, for applt. Hinsdale & Sprague, for respt. Held, The court is not authorized to order a reference of an ordinary action of this kind, and the other Appeal by the plaintiff from an order made at Special Term referring the action to the Hon. Josiah Sutherland, as referee, to hear and provisions of the order were undetermine. warrantable. Nor can the order be This action is one for negligence, sustained as a proceeding to reach which caused the death of plaintiff's a fund in court. There is no fund husband by derailment of the train in court, for the action is for damof which he was engineer. After is- ages against one operating a railsue joined, the defendant obtained road by order of the court. The an order for plaintiff to show cause plaintiff is entitled to prosecute her why this action should not be re- action in the mode which the law ferred to the Hon. Josiah Suther- has provided. Her rights are the land, and directing that the testi- same as though she were seeking to mony heretofore taken in another enforce a personal instead of an action heretofore brought in this official liability; for it is obviously court by one Brown against this de- the duty of the court to afford the fendant, and referred to the said ref- usual and appropriate means of oberee, by mutual consent, should not taining justice to one who applies be considered and treated as having for it in a regular manner. been taken in this action. On a hearing of the motion it appeared that the Brown action was brought P. J., concurs. by a passenger for injuries sus Order reversed, with $10 costs. |