Ex.]

WILSON . THE NEWPORT DOCK COMPANY.

[Ex.

general rules, to be fairly, candidly, and impartially | fitting place upon the shore; upon the ebbing applied. It has been said that the damage sus- of the tide she comes down upon a pile and tained here has been very great. Now, I am clearly sustains further damage. My own belief is of opinion that this ought to be no element what- that compensation for such damage has been ever in the application of the rule, and whether the recovered over and over again without objecdamages be 10l. or 10,000l. is immaterial. The tion, and upon referring to some gentlemen at circumstances are these. In pursuance of the defts.' the bar, whose experience upon this subject is the contract to admit the ship into the dock at a certain greatest in the profession, I have been informed that time upon a certain day, the ship was brought to the it has invariably been so. Such damage is precisely entrance of the dock; the defts. could not admit her analogous to the present. Some possible cases were in consequence of a defect in a chain of the dock mentioned in the argument, and it was asked gate, and their contract is admitted to have been whether the defts. would in such and such a case broken. No blame attaches to them; it was their have been responsible. One was, if the ship had misfortune that the chain had been broken. The been run down by another ship whilst at anchor; I ship was then left in the river, which is one empty- think the liability in such a case would depend upon ing itself into the Bristol Channel, where the tide the circumstances, and a material one would be ebbs and flows to a very great height. The captain whether the running down ship was in the wrong. had to decide what was to be done under the Another case put was, if the ship had been upset by circumstances in which he was placed. Four courses a hurricane while she was anchored. I think that have been suggested as open to him: one, that he this would raise a question for the jury whether, in should have remained and anchored where he was; all human probability, the same misfortune would secondly, that he should have gone up the river to not have happened to the ship wherever in the river the place from whence he came; thirdly, that he she might have happened to be. In my opinion, the should have gone down the river to West Point, discussion of instances like these is of little bearing where it was said that the ship, upon the ebb, would or weight when the facts of the case to be adjudihave settled upon soft mud; and fourthly, that he cated upon are clear and well defined. In questions should have gone into deep water, where the ship of damages, each case must be determined upon its would always have been afloat. Now, I think that own circumstances, but I think the point is decided the defts. had a right to a bonâ fide and reasonably by authority. In Jones v. Boyce, 2 Stark. Ev. 3rd edit. sound judgment being exercised upon the matter. 2963, Ib. 741; 1 Stark. Rep. 493, the plt. was a pas The captain decided upon remaining where he was. senger by a stage coach, and a rein broke; the coachman The tide was ebbing and the weather threatening. drove the coach to the side of the road, and one of the If either of the other courses had been adopted, it wheels was stopped by a post; the plt. jumped off might have been that the ship would have sustained and his leg was broken, and he brought an action no damage, or it might have been that the ship against the coach proprietor for damages. Lord would have been totally lost; but I think this was Ellenborough said there were two questions for the a question for the jury, and that they have decided jury: first, as to the deft.'s default in regard to the it; they have found that the captain did the best he rein, which is immaterial to the present case; the could under the circumstances, and was not guilty second was, whether the deft.'s default was conof any negligence. The consequence was, that ducive to the injury the plt. had sustained; if it when the tide ebbed the ship took the ground and was not so far conclusive as to create such reasonsustained damage; and the question that has been able apprehension in the mind of the plt. as rendered argued before us is, that this damage is too remote, it necessary for him to jump down from the coach and so unconnected with the cause of action that it in order to avoid immediate danger, the action would must, as a matter of law, be borne by the plt., and not be maintainable. Amongst the observations on that the defts. cannot be responsible for it. I do not the peculiar circumstances of the case, he said that concur in this view; there has been damage; it it was for the consideration of the jury whether the must be borne by some one; neither the plt. nor plt.'s act was such as a reasonable and prudent mind his captain is in the slightest default. If the defts. would have adopted; and he added, "If I place a had performed their contract no damage would have man in such a situation that he must adopt a occurred; in consequence of their default the cap- perilous alternative, I am responsible for the circumtain was compelled to exercise his judgment and stances." I think the present case is analogous discretion, and the jury have found that he did the The defts. did not perform their contract to admit best he could and was guilty of no negligence, by the plt.'s ship into their dock; they thereby imposed which I understand that in deciding to remain on the captain four perilous alternatives, and he where he was he exercised such a judgment and adopted one. The jury found that he did the best discretion as became a reasonable man acting pru- he could, and was guilty of no negligence, and dently. His doing so was, no doubt, the immediate damage ensued to the ship. In my opinion the cause of the damage; but, in my opinion, his defts.' default directly conduced to this damage, and remaining there was, in contemplation of law, they are responsible for it upon the principle the same as if the ship had been compelled to enunciated by Lord Ellenborough in Jones v. Boyce, remain there by a vis major. The rule is, that the which, in my opinion, is equally good law and good damage must be proximate (not immediate), and sense. For these reasons I think the damage is not fairly and reasonably connected with the breach of too remote, and that the learned judge submitted the contract or wrong. As to what is so, different minds right questions to the jury, and I concur with him will differ, but many instances could be mentioned that the verdict is unobjectionable. The rule therein which damages much more remote than the pre- fore should be discharged. sent were held to be the subject of compensation; as in Powell v. Salisbury, 2 You. & J. 391, and in Byrne v. Wilson, 15 Ir. Com. Law Rep. 332, the Court of Q. B. in Ireland upon demurrer held that damages were recoverable in that case, which were infinitely more remote than the present, for the death there was caused by reason of the dock-keeper allowing the water to come into the canal where the person was cast. There is a case of constant occurrence at Guildhall: a barge is injured by collision in the Thames; she is taken to the nearest convenient

POLLOCK, C. B.-I have to state the opinion my learned brothers Channell and Pigott, and also my own. This case comes before us on a point reserved at the trial, namely, whether the damages were too remote; and, to assist our judgment, we have, first, the notes of the learned judge taken at the trial; secondly, the answer of the jury-"that the pilot' and the captain did the best they could under the circumstances, and were neither of them guilty of any negligence;" and we have the fact

Ex.]

WILSON V. THE NEWPORT DOCK COMPANY.

that the jury could not agree on the other question, |
"whether there was in fact any place of safety to
which the vessel might have been taken ?" The
questions for our decision seem to be, first, ought
the verdict to stand? (being, not a verdict found
by the jury, but entered for the plt. by the learned
judge, on the jury answering one question and being
unable to agree upon another question, which we
think the more important and decisive of the two);
or, secondly, ought we to enter the verdict for the
defts.? or, thirdly, ought we to direct a new trial?
In deciding these questions, it is necessary to ascer-
tain the facts of the case as found by the jury;
for, with evidence so contradictory and repugnant,
we cannot find any verdict ourselves. It is not our
province. If the facts can be ascertained, then,
what is the law applicable to them? We appre-
hend when the facts are known it is the province of
the court to say for what matters damages are to be
given. But the amount of damages is a question
for the jury quite as much as the credit due to the
witnesses. When the result of the evidence is un-
certain it is for the jury to find the facts, and
therefore they will often have to find whether facts
fall within the rule of law to be laid down on the
subject. The case of Hadley v. Baxendale was cited
at the trial, and much commented on during the
argument. That case was very much considered.
The argument took place several weeks before the
judgment was given, and I know that great pains
were bestowed upon it. Lord Wensleydale, the late
Alderson, B., and my brother Martin were parties
to it, and it is due to Lord Wensleydale and the late
Alderson, B. to say that a more extensive and ac-
curate knowledge of decisions in our law books,
and a more acute power of analysing and dis-
cussing them, and, as far as my brother Martin is
concerned, a larger acquaintance with the exigen-
cies of commerce and the business of life, never
combined to assist in the formation of any decision;
and, certainly, it does not lessen the authority of
that case that Lord Campbell, in Smeed v. Ford, 1
E. & E. 602, said that it merely affirmed what was
to be found in Pothier, in 2 Kent's Com. 665,
in the French Code, and in all the other authori-
ties; and it may be added that Crompton, J. |
(against whose summing-up it was directed)
in that same case said, he agreed with it as far as it
went, which we consider to be agreeing with it
altogether. I own, after this (I am now speaking
my own opinion), that I cannot think the authority
of that case is at all shaken by either of the matters
that my brother Martin has cited from the Irish
reports. I think the authority of Lord Wensley-
dale, Alderson B., my brother Martin, and Cromp-
ton J., fortified by Lord Campbell stating that that
case only expressed what all the authorities, French,
American, and English, as far as they went,
embodied, cannot be considered as in any degree
shaken by what has occurred since. That decision
was not presented as any new discovery in juris-
prudence, but we think it put in a clearer and more
distinct light a principle which had been previously
recognised in prior cases, and the want of which, in
the English law, had been pointed out. The autho-
rities are all collected in a note to Vicars v. Wilcocks,
2 Sm. L. C. 5th ed. 461. It is quite true, as remarked
by Wilde, B., in the case referred to by my brother
Martin, that that case is not applicable to, and
does not decide, every case. No rule, no formula,
could do that. Cases of damage differ as much as
the leaves of a tree differ from each other, or rather
as the leaves of different trees. No two are exactly
alike, and one description cannot be applicable to
all. No precise positive rule can embrace all cases,
and, notwithstanding any rule of law that may be
laid down, it must be admitted, after all, that the
question of the amount of damages is one for the

[Ex.

jury, and the jury only; and, provided the law on the subject be properly laid down by the presiding judge, and then the amount of damages be left at large to the jury, we apprehend a court would not interfere with their verdict because the jury had, apparently, come to some compromise among themselves, and had not strictly observed the supposed rule of law. We think that the decision of twelve jurymen, instructed from the bench in the rules of law, but exercising their own judgment on a subject connected with the business of life with which they are familiar, would, practically, lead to a result often more just and equitable than any mere rule of law would arrive at. And, that there may be no mistake as to our meaning, we may add that should this case go to a second trial, some of the jury might think the plt. entitled to recover the whole damage; others might think it the height of imprudence on the part of the master to attempt to remove a vessel from a dry dock to a wet dock about the time when the wind was blowing a hurricane (which from his evidence seems to have been the case), and from which charge of imprudence the verdict of the jury has not relieved him. The result might be a compromise, which we are confident the court would not, and which we think they ought not to disturb. We think we are not able to determine, from the materials before us, whether or not the loss was occasioned by circumstances which, according to the case of Hadley v. Baxendale and the other authorities, would make the dock company liable for the damage which the ship sustained. If the state of the weather was the efficient cause of the loss, we think the defts. are not liable. Now, as to the state of the wind; the evidence of the mate is, "Not much wind; blowing pretty stiff; a fresh breeze." The evidence of the captain was, "It was only a few hours before a perfect hurricane." James Dunster, the master rigger, says, "It was blowing so hard it would not have been safe to take her into deep water." If the weather was such that, on being excluded from the dock, she had no alternative but to perish on account of the gale or hurricane, which seems to me to have been the opinion of the master, then it may be doubted whether she ought to have been taken to the dock gates at all in such a state of the weather. And the opinion of the jury by a verdict should have been obtained on these and other circumstances, and the verdict ought to have been found by them on a larger issue than whether the master and the pilot did their best after they found the vessel could not be received into the dock, which I take to be the only finding of the jury. It is clear that the pilot thought the master was obstinate, and determined to do nothing to save the ship. We cannot find the defts. liable for this damage because the jury were disposed to relieve the captain and the pilot from the odium of a charge of negligence. The verdict of the jury ought to have gone more into the merits, in order to fix the defts. with these damages. What the jury did not find, and could not agree upon, was quite as important as what they did find; and the result of their verdict seems to be, "We cannot agree as to the liability of the defts., but we desire to throw no blame on the captain or the pilot." We are, therefore, of opinion that the jury have not found enough, in point of fact, to enable us to decide that the verdict entered for the plt. is what would have been, or (referring to the evidence actually given) ought to have been their verdict, if the entire case had been left to them to find a verdict for the plt. or for the defts. Looking at the evidence and the finding of the jury, we cannot come to any conclusion that would make the defts. responsible for the damage done to the vessel. If there was any place of safety to which the vessel might have been taken, and could have been taken

Ex.]

THE SOUTH STAFFORDSHire Waterworks BILL.

[IN PARLIAMENT.

En Parliament.

Reported by A. P. STONE and W. GRAHAM, Esqrs., Barristersat-Law.

BILLS.
Monday, March 5.

and Mr. RICKARDS, Referees.)

THE SOUTH STAFFORDSHIRE WATERWORKS BILL.
Objection to the locus standi of the Petition of the

FEOFFEES and SIDESMEN of the CITY of LICH-
FIELD.

(which we think is included in the learned judge's question), we think the plt. is not entitled to recover. The jury could not agree on an answer to this question. If they had found this question in the affirmative we think the plt. was clearly not entitled to recover, and we presume the judge would have THE COURT OF REFEREES ON PRIVATE directed a verdict for the defts. But, after many hours, they could not agree, and it is plain that some of the jury were of opinion in the affirmative, others might have been in the negative. It is true, they (Before Mr. DODSON, Chairman; Sir E. COLEBROOKE found that neither the captain nor the pilot was guilty of negligence, but we think it very uncertain what they meant by that finding. They certainly did not mean by that finding inferentially to decide the other question, or they would have found it, and not ultimately have disagreed about it. If there was a safe place to which the vessel might and ought to have been taken, a verdict for the plt. would be a great act of injustice, and we are invited to find this for the jury by a process of reasoning, when the jury would not, and apparently could not, and certainly did not, find it for themselves. As to entering a verdict for the defts. there is a similar difficulty, though perhaps not so great, because, if the plt. does not establish his case, the defts. are entitled to a verdict. But we think we cannot be certain what would have been the verdict of the jury if they had gone into, and had decided upon the whole case for themselves. We think, therefore, there ought to be a new trial.

CHANNELL, B.-Entirely agreeing as I do in the opinion which his Lordship has expressed in the judgment that he has just read, I have not thought it necessary to prepare any written judgment of my own. If no new light should be thrown upon the case by the finding of the jury before whom it will be tried again, then it is possible that the legal result may be that which my brother Martin has arrived at, in the elaborate judgment which he has read. But the question now is, whether the present verdict for the plt. is to stand, and I wish to say that I think the case is not at present ripe for decision.

PIGOTT, B.-That is my view, and that is why I concur in the judgment of the Lord Chief Baron. I do not think the case is concluded by the finding of the jury upon the one question that was submitted to them. It seems to me that they could not agree upon one of the questions, and they did agree upon the other. That is inconsistent in my view, and in that state of the matter I do not think the plt. is entitled to recover the large damages which he has sought to recover in this case.

Rule absolute for a new trial.

Attorneys for plts., Marshall, Westall, and Roberts, 7, Leadenhall-street, E. C., agents for Forshaw, Goodman, and Hawkins, Liverpool.

Attorney for defts., B. Hunt, 6, Gray's-inn-square, agent for Prothero and Fox, Newport.

Locus standi― Waterworks Bill-Right to underground
water-Compensation clauses.
A waterworks company, which had obtained powers to
convey water to a pumping engine about half a mile
from the city of L. through a tunnel aqueduct, pro-
moted a Bill to obtain possession of additional lands
in the centre of the city, and a general power of pur-
chasing by agreement other lands in which to construct
wells and shafts. Against this Bill a petition was
presented by the trustees under an ancient trust for
supplying water gratuitously to the inhabitants of the
city, stating that the petitioners were possessed of
an ancient spring of water issuing from the sand-
stone in the neighbourhood of the city, and had ex-
pended large sums in improving the supply and distri
bution of the water. That by the formation of the
branch aqueduct the supply of water in the fields of the
city (reliedon by the petitioners for supplying occasional
deficiencies in the conduit main) had been diminished.
The petition then suggested that the promoters sought
their powers for the purpose of pumping water out of
the sandstone at a lower depth (undefined and un-
limited) than the aqueduct tunnel, thereby threatening
to annihilate the sources of supply entrusted to the
petitioners. By one of the special Acts constituting the
company of the promoters, it was provided that if at
any time by reason of the works of the company the
springs or streams of water from which the inhabitants
of the city derived their supply should fail, or the flow
of water therein be prejudicially affected, or in case
the springs or streams should be acquired by the com
pany for the purposes of their undertaking, and the
petitioners abandon their right to take and use water
therefrom, the company on request should permit the
petitioners to take and draw from the tunnel aqueduct
of the company such water as they should require:
Held, notwithstanding, that the petitioners were entitled
to a locus standi.

Quere, whether the proposed abstraction of underground
water by an undertaking will afford a locus standi
against it.

Waterworks Company to obtain possession of certain lands and tenements in the city of Lichfield, and for other purposes.

This was a Bill to enable the South Staffordshire

Against this Bill a petition was presented by the feoffees and sidesmen of the conduit lands of the city of Lichfield, being also inhabitants of the city, stating,

1. That the petitioners, by virtue of a trust created in the reign of King Henry VIII., for supplying gratuitously with water the inhabitants of the city, were by the above descrip tion of feoffees and sidesmen, the acting trustees constituted for that purpose, and, as such, were possessed of an ancient well or spring of pure soft water issuing from time immemo rial out of the sandstone at Aldershaw, on the summit of the range of hills, the boundary of the valley in which the city is situate.

2. That the stream therefrom having of late years diminished and the demand of the inhabitants for water much increased, the petitioners had within the last ten years, and especially with in the last three years, expended large sums of money in

THE SOUTH STAFFORDSHire WaterwORKS BILL.

IN PARLIAMENT.] THE UXBRIDGE AND RICKMANSWORTH RAILWAY BILL. on some convenient site, such water as the feoffees and corporation may require, the same to be taken and used for the same purposes only, and subject to the same limitations and restrictions as hereinbefore contained. The promoters also desire to call the engineer of the company in order that he may show that the new pumping stations can in no respect drain the tunnel aqueduct. [Mr. RICKARDS.-The Referees do not think that this a case in which such evidence can be received.] The promoters will, therefore, contend that Parliament has already given full compensation to the petitioners.

By the REFEREES.-The locus standi of this peti- of one year from the passing of the Act, and on the tion is allowed.

Objection to the locus standi of the GREAT WESTERN be completed. By clause 6 the company took power