JANUARY TERM, 1881.

CORINNE BILLINGS, ADM'X V. AMOS BREINIG.

Jurisdiction of maritime torts—Forfeiture not triable as a collateral issue—
Ferry franchise—Negligent injury.

State courts may take jurisdiction of an action for a maritime tort where
there is a remedy at common law and the wrong is made action-
able by State legislation.

Forfeiture of a franchise can only be determined in a direct proceeding, and not as a mere incident of an action in tort for the purpose of showing that the party injured was attempting to exercise rights which he had lost.

The franchise of keeping a rope-ferry is property having the valuable incidents of other kinds of property and transferable subject to conditions lawfully imposed and to such governmental control as results from its public nature.

It is negligence to disregard a positive regulation that boats moving at night shall exhibit lights, even though the practice may have been otherwise; and if injury is done, it is for the jury to determine how far it was connected with such negligence.

In an action for negligent injury the plaintiff must show that the person injured had exercised due care and had not contributed to the injury; this need not be shown by direct evidence, but may be inferred from the circumstances.

Error to Mason. Submitted October 7, 1880. Decided January 5, 1881.

CASE. Plaintiff brings error. Reversed.

White & McMahon for plaintiff in error, to the point that the case was not exclusively within the admiralty jurisdiction, cited Brig City of Erie v Canfield 27 Mich. 483; State of Pennsylvania v. Wheeling etc. Bridge Co. 13 How. 561;

Hoffman v. Union Ferry Co. 47 N. Y. 176; Lambert v. Staten Island R. R. Co. 70 N. Y. 104; 2 Parsons on Admiralty 498-9; and that the death of plaintiff's husband was not too remote a consequence of the negligence to be a cause of action: Castello v. Landwehr 28 Wis. 522; Hoyt v. Jeffers 30 Mich. 181-200; Metallic Comp. Co. v. Fitchburg R. R. Company 109 Mass. 277: 12 Am. 689; Cook v. Parham 24 Ala. 21; The Clarita and the Clara 23 Wallace 1; that it was negligence in defendant to omit to display lights as required by U. S. Rev. Stat. p. 821, Rules 3, 5, 7: Ure v. Coffman 19 Howard 56; Taylor v. Harwood Taney's Decisions 437; The Fenham 23 Law Times 329; The Pennsylvania 19 Wallace 136; McCall v. Chamberlain 13 Wis. 637; Messenger v. Pate 42 Iowa 443; Moore v. Moss 14 Ill. 106; Moody v. Osgood 60 Barb. 644; Directors of North Eastern Railway v. Wanless 9 Eng. 1; Britton v. Great Western Cotton Co. 1 Eng. 381; Bill v. Smith 39 Conn. 206; Bigley v. Williams 80 Penn. St. 107; Foster v. The Miranda 6 McLean 221; Waring v. Clarke 5 Howard 441-465; or to sound a whistle: The Gray Eagle 9 Wallace 505-511; Chamberlain v. Ward 21 How. 548-567; The Continental 14 Wall. 359; The Favorita 18 Wall. 598; that negligence is a question of fact where men of ordinary prudence might differ as to the necessary care: Thurber v. Harlem, B., M. & F. R. R. Co. 60 N. Y. 326; Hays v. Miller 70 N. Y. 112-116; Lambert v. Staten Island R. R. Co. 70 N. Y. 104-108; Langhoff v. Mil. etc. R. W. Co. 19 Wis. 489-497; Ewen v. Chicago & N. W. Ry Co. 38 Wis. 613-628; Gaynor v. Old Colony etc. R. R. Co. 100 Mass. 208; Sutton v. The Town of Wauwatosa 29 Wis. 21-33.

Fitch & Samuels for defendant in error. Locality is the test of jurisdiction in cases of tort: Ins. Co. v. Dunham 11 Wall. 1; Waring v. Clarke 5 How. 441; De Lovio v. Boit 2 Gall. 465; and the jurisdiction of an act done on the water is not changed by the fact of its taking effect on the land: Davison v. Sealskins 2 Paine 324; the omission of a precaution required by statute is not of itself evidence

of negligence and does not dispense with the need of diligence and reasonable precaution on the part of others: C. C. C. & I. R. R. v. Elliott 28 Ohio St. 340; Wilcox v. Rome and Watertown R. R. 39 N. Y. 358; Galena and Chic. R. R. v. Dill. 22 Ill. 271; Steves v. Oswego and Syracuse R. R. 18 N. Y. 422; Artz v. Chic. Rock Island and P. R. R. 34 Iowa 154; Spencer v. Ill. Cent. R. R. 29 Iowa 55; Chic. and Rock Island R. R. v. McKean 40 Ill. 218; C. B. &. Q. R. R. v. Harwood 80 Ill. 88; Ernst v. Ilud. River R. R. 39 N. Y. 68; Havens v. The Erie R. R. 41 (Hand) N. Y. 296; Gorton v. Erie R. R. 45 N. Y. 660; St. Louis, Jacks. & C. R. R. v. Terhume 50 Ill. 150; Bellefontaine R. R. Co. v. Hunter 33 Ind. 335; Leavenworth, Lawrence, etc. R. R. v. Rice 10 Kans. 426; Baxter v. Troy and Boston R. R. 41 N. Y. 502; Wharton on Negligence, § 384; Cooley on Torts, 680; Salter v. U. & B. R. R. Co. 75 N. Y. 273; contributory negligence bars the right to recovery: Kelly v. Hendrie 26 Mich. 256; Underwood v. Waldron 33 Mich. 238; Williams v. Mich. C. R. R. Co. 2 Mich. 259; Lake Shore & Mich. South. R. R. v. Miller 25 Mich. 274; Balt. & Ohio R. R. v. Breinig 25 Md. 378; Lafayette & Ind. R. R. v. Huffman 28 Ind. 287; McGrath v. Hud. Riv. R. R. 32 N. Y. 144; Carroll v. Minn. Valley R. R. 13 Minn. 30; Salter v. U. and B. R. R. Co. 75 N. Y. 273; Mich. Cent. R. R. Co. v. Coleman 28 Mich. 440; Mabley v. Kittleberger 37 Mich. 360; Le Baron v. Joslin 41 Mich. 313; however slight it may be, if a proximate cause of the injury: O'Brien v. Phil. Wilm. & Balt. R. R. 3 Phila. 76; Potter Admr. v. Chic. & North. West. R. R. 21 Wis. 372; Rathbun and West v. Payne et al. 19 Wend. 399; Barnes v. Cole and Fitzhugh 21 Wend. 188. The plaintiff in an action for fatal negligence must not only prove defendant's negligence, but prove that the deceased was not to blame. Owings v. Jones 9 Md. 108; Mich. Cent. v. Coleman 28 Mich. 440; Murphy v. Deane 101 Mass. 455; Dickey v. Maine Tel. Co. 43 Me. 492; Warner v. N. Y. Cent. R. R. 44 N. Y. 465; Pendleton, etc. R. R. v. Stallmann 22 Ohio St. 1; Galena, etc. R. R. v. Fay 16 Ill. 558; I. & St. L. R.

R. Co. v. Evans 88 Ill. 63; Cooley on Torts 673; Rail Road v. Miller 25, Mich. 274; Le Baron v. Joslin 41 Mich. 313; and if both are to blame, neither can bring an action. Hawkins v. Cooper 8 C. & P. 473; Trow v. Vt. Cent. R. R. 24 Vt. 487; one who places himself in a dangerous position and suffers injury in consequence contributes to it. Railroad Co. v. Jones 95 U. S. 439; Goldstein v. C. M. & St. P. R. R. 46 Wis. 404; one who might have avoided an injury by ordinary care is treated as having sufficiently contributed to it to defeat a right of recovery. Collgrove v. N. Y. and N. H. R. R. Co. 20 N. Y. 492; Sherman v. Fall River Iron Works, 2 Allen 524; Hoben v. Burlington, etc. R. R. Co. 20 Iowa 562; Bigelow v. Reed 51 Me. 325.

an

GRAVES, J. A wire rope being stretched across expansion of the river Marquette at Ludington for ferrying purposes and connected on shore with a fixed windlass to elevate it for use and drop it in the water to avoid vessels, the defendant in the early evening of October 17, 1878, ran his tug against it. At the same time the decedent was in temporary charge of the ferry and was at the windlass for the purpose of dropping the rope out of the tug's way; he having repaired to the spot therefore in great haste on learning that the vessel was moving towards the rope and was near to it. The rope was still up, but decedent was in act of lowering it as the tug struck. The violent strain whirled the windlass crank with great suddenness and force and caused it to strike the plaintiff's husband on the head, killing him instantly.

The plaintiff brought this action under a statute of 1848 (Comp. L. §§ 6724, 6725), as amended in 1873 by Act No. 94, to recover such damages as should be "fair and just, with reference to the pecuniary injury resulting from such death, to those persons entitled to such damages when recovered."

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The circuit judge took the evidence from the jury, and in substance and effect directed a verdict for the defendant. In so proceeding he seems to have considered that, whatever view the jury might take of the defendant's conduct, the showing

was conclusive that the catastrophe was owing in part at least to the want of due care on the part of the decedent.

The plaintiff now questions the ruling on a bill of excep tions. The defendant's counsel not only support the opinion of the circuit judge, but urge independent objections against the action. Three points may be first noticed. It is objected that the suit is for a maritime tort where the remedy is by statute, and that the jurisdiction rests in the courts of the United States and cannot be exercised by the state tribunals. The point is not well taken. Rev. Stat. U. S. § 563, subd. S. The common law gives the right of a common-law remedy to redress the grievance which is made actionable by the state statute, and this brings the case within the saving provision of Congress. Steamboat Co. v. Chase 16 Wall. 522; Leon 'c. Galceran 11 Wall. 188; Brown v. Gilmore (Penn. St.). See also Brig City of Erie v. Canfield 27 Mich. 479; McDonald v. Mallory 77 N. Y. 546; Schoonmaker v. Gilmore 102 U. S. 118, and Brown v. Davidson 102 U. S. 119.

It is next objected that decedent's death came about by his acting as a ferryman, and that he was so acting under one Christian, whose authority was under a license granted to his lessor by the board of supervisors of Mason county, who at the time of the license had no authority, because the control of the ferry had prior thereto been given by the Legislature to the city of Ludington in the grant of city government in 1873. The record fails to sustain the objection in the matter of fact.

The trial was in February, 1880, and the proof was positive that the ferry had been then established seventeen years at least, and the license must therefore have antedated, so far as appears, the charter of the city more than ten years. The Legislature had no power, and seems not to have assumed any, to abrogate any existing license. At the time of the occurrence the ferry had been held and occupied under color of a grant from competent authority during the long period mentioned, without any question being raised as to the existence and regularity of the franchise. The public authorities and the public generally had acquiesced. No one suggested