US SUPREME COURT DECISIONS

1. This Court cannot decide that a charge is wrong which submits it to the jury to say whether a wharf was a public place upon which all persons were accustomed to come and go at pleasure, and were by law permitted so to do, when the record does not contain the evidence upon which the question arose. The court cannot assume that the charge was erroneous.

2. The general rule is that when an injury has been sustained by the negligent manner in which a wharf or other work is constructed or protected, the principal is liable for the acts and negligence of the agent in the course of the employment, although he did not authorize or know of the acts complained of. When the actor ceases to be a servant or agent and is, himself, the master, he alone is responsible.

3. When a contractor agrees with a railroad company to furnish the materials and labor for building a wharf, to put in posts, piles &c., as the company should require, making an old wharf as good as new, and a new one in the most workmanlike manner; to submit to the supervisor and direction of the company's engineer, and to do the work to his satisfaction, held that the company had the general and special control of the work, and that the contractor was their agent; and that the company was responsible for an injury occurring through the negligence of the contractor or of those in his employment.

4. An act of the General Assembly of the State of Louisiana, referring to a certain railroad corporation, enacted that the said corporation should chanrobles.com-red

Page 82 U. S. 650

not be liable for debts incurred by those who should contract with it for building its road &c., "nor shall said company be liable for any injury to person or property caused by the act or omission of the persons so contracting with it." Held that this was a convenient form of declaring the common law rights of the company, and conferred no exemption on it.

5. Until notice has been given of the changed character of the place, one passing over a wharf or platform over which the public has been accustomed to pass cannot be made a trespasser for so passing, although the wharf or platform is now no longer used for the purpose of passage.

The New Orleans, Mobile & Chattanooga Railroad Company -- the station house grounds of whose road in New Orleans came down in one part of the city to the batture of the Mississippi -- obtained conveyances of the batture property in front, the same being accurately described by maps annexed to them, and were desirous of building in front of their batture a wharf on the river and also of repairing an old wharf there.

With a view of enabling them to do this, the General Assembly of Louisiana, by a joint resolution passed March 6, 1869, gave the company:

"The right to enclose and occupy for its purposes and uses, and in such manner as the directors of the said company may determine, that portion of the levee, batture, and wharf, in the City of New Orleans, between and from [certain streets described] to the lower line of the batture, rights owned by said company."

And the joint resolution provided that:

"No steamship or other vessel shall occupy or lie at said wharf or receive or discharge cargo thereat except by and with the consent of the said company."

On the 21st of January, 1870, the General Assembly also passed an act [Footnote 1] relating to the company whose second section was in these words: chanrobles.com-red

Page 82 U. S. 651

"The said corporation, its officers, or employees, shall not in any case be liable for any debts contracted or liabilities incurred by any person or persons who shall have contracted, or who shall contract with it, to construct any portion of its road, buildings, or appurtenances, or its rolling stock, or to furnish any materials or labor to be used for such construction, or for its maintenance or operation."

"Nor shall said company, its officers, or employees be liable for any injury to person or property, or loss of life which shall be caused by any act or omission of any person or persons so contracting with it,\ or any of his or their employees or agents."

In this state of things, on the 28th of November, 1870, the railroad company, through its division engineer, G. W. Bayley, made an agreement with one Michael Carvin, thus:

"Michael Carvin agrees to furnish the timber, planking, and iron work, and all the labor necessary for the rebuilding of the company's wharf in front of their depot grounds, . . . with such mooring posts, cluster piles for fenders every twenty feet, rows of piles on boundary lines, above and below, slips or inclines, as the company, through their engineer, may require, for the sum of $40 per square of one hundred square feet, it being understood that only the best quality of twelve-inch square yellow pine timber shall be used for piles, caps, stringers, fenders, and blocking, and the best of three-inch yellow pine planks for covering or flooring, such of the old piles as are sound and good to be sawed off and blocks placed thereon, but new caps, stringers, and planking to be used throughout. The old wharf to be made as good as new, and the new wharf in the best workmanlike manner, two hundred feet of wharf, from the lower line, to be completed in two weeks and the whole within one month from this date."

"It is also understood and agreed that the said G. W. Bayley, division engineer of the company, shall supervise and direct the work hereby agreed to be done, and that the said work shall be done to his satisfaction."

"Payment to be made in currency, on the 10th of January, 1871, the company's regular payday, at the rate of $40 per square for completed wharf as above specified, on the approval of the estimate or bill for same by said G. W. Bayley, division engineer. "

Page 82 U. S. 652

During the progress of the work thus provided for, one Hanning, while walking, as he alleged, across the wharf and using all proper precautions, was precipitated down an embankment the distance of ten feet and received serious injury, the injury, as he further alleged, being wholly caused by the company's negligently removing the planks on the wharf and negligently laying the planking thereon contrary to its obligations in the matter. He accordingly sued the company, alleging that the wharf was a "public wharf."

The place where the wharf was, it appeared, prior to the passage of the joint resolution of March 6, 1869, authorizing the railroad company to enclose and occupy it for its own purposes and uses, had, like the banks of all rivers in Louisiana, from an early date, been open to the public for passing along.

The court below, refusing to give instructions requested by the plaintiff of an opposite kind, charged that if the jury should believe from the evidence that the wharf had always been free and open to the public, then that when the legislature gave to the company the right to occupy it, it was the duty of the company to take means to warn the public that the rights of the public had ceased, so that persons might avoid going upon it, and that as the company had neglected to take any precautions in this respect, they were liable for the damage.

It also charged that the company was answerable for the acts of its contractor, under the contract with Carvin.

The jury found $10,000 damages for the plaintiff, and judgment being entered accordingly, the present writ of error was taken.

The record sent here was a meager one. It did not furnish any evidence of what sort of a wharf, as ex gr., whether public or private, this wharf was, further than as might be inferred from the joint resolution of March 6, 1869, the conveyances of property adjoining it, and the contract with Carvin. Neither did it appear what brought the plaintiff on the wharf, whether lawful business, idleness, curiosity, or some bad purpose. chanrobles.com-red

Page 82 U. S. 655