Page:Federal Reporter, 1st Series, Volume 2.djvu/106

 POWELL V. STEAM-TUG WILLIB. 99 �It is suggested that the tug should have waited two hours for slack water, and not attempted the landing at flood tide. But the proof is that but for this obstruction, which was wholly unknown, it was a safe and prudent course to land the boat as she was in course of landing at the time of the acci- dent. Therefore, there was no duty to wait for a change of tide. �It is also suggested that she should have taken the canal- boat through the draw and landed her on the north side of the bridge, from which place she could have hauled round to her berth at slack water. The same answer applies to this suggestion, that what they did was safe and prudent, so far as they are chargeable with a knowledge of their situation ; and to this suggestion there is the further answer, that as there was no place at the bridge apparently used as a landing place, except this berth under the derrick, the tug would have had no right to subjeet the tow to the unknown dangers that might exist under the water at other parts of the bridge. If, in attempting to bring the boat up against the north side of the bridge, she had struck such a projecting brace, the tug could not defend her course in taking her tow to a place not appar- ently fitted for a landing place. In taking her there without necessity, she would clearly assume the risk of hidden dan- gers that might be there. �The case of Dowdall v. The Pennsylvania Railroad Co. 13 Blateh. 403, is referred to as sustaining this libel. It is true that the jury in that case found the owner of this tug guilty of negligence for the loss of this canal-boat at the same place. The case is not claimed to be a decision conelusive of the fact in the present case as an estoppel by record. But it is claimed that the instructions of Mr. Justice Hunt to the jury were such as to charge the tug with negligence in not knowing of the obstruction. The court left the question of negligence to the jury as a question of fact, and to the submission of this question generally the defendant appears not to have excepted. The court charged "that the defendants were bound to possess a knowledge of the dangers of the naviga- tion they undertook, " and to this defendants excepted. ����