Page:Federal Reporter, 1st Series, Volume 2.djvu/299

 292 FEDERAL REPORTER. �pontoons, further instructed them asfollows: "Eegarding the pontoons, at one time kept and maintained by the defendant Company, extending from the south pier up the south bank of the river, testified to, you are instructed that the company owning the bridge was not, by law, required to put them there or keep them in position, yet, if the owners of the bridge, for the protection thereof, or for any reason, kept them there, and they were, from any cause, sunk, and thereby diverted the current of the river from its usual andordinary course or chamiel, thus causing difficulty or danger in the approaching of the bridge draw by boats, and that such change of the current caused or contributed to the collision of plaintifï's boat with the draw- rest of the bridge, you are authorized to fînd for the plaintiff, provided the plaintiff company, navigating its boats on the occasion of the collision, did so with care and skill, and did not contribute to the injury by its own neglect or improperly handling its vessel. Those navigating the river are under no obligation to remove wrecks which may be made in the ordi- nary and proper course of navigation. While this is undoubt- edly the law, it is also the law that he who, for his own benefit, and not for the purpose of navigation or commerce, uses any navigable part of a river, is liable in damages to the party injured if such use causes a diversion and change in the ordinary course of the ehannel of the river, and thereby in- creases the difficulty and danger of navigation, and injury re- Bults therefrom. " The charge, upon this branch of the case, seems to me to have been in ail respects correct. �5. It is insisted by the counsel for defendant that the sink- ing of the pontoons was caused by unavoidable accident, and that, under the circumstances, the defendant cannot be held responsible for the consequences. Assuming that the pon- toons were, while kept afloat, lawful and proper structures, and no impediment to navigation, it would probably follow that in the event of their being sunk by unavoidable accident the defendant would be entitled to a reasonable time in which to raise or remove them. But as it appears from the evi- dence that the pontoons in question were sunk in the winter of 1873-4, more than two years before the' accident com- ����