March 1877 repairing said vessel, and the further great sum, to Term. wit: the sum of $650, special damage which said plaintiff necessarily sustained by being deprived, of the use and enjoyment of said vessel, and her ordinary gains and profits to said plaintiff during the time that she adm'r. was sunk, being raised and repaired. City of Petersburg V. Appleg'h's The second, third and fourth counts are very nearly to the same effect with the first, and it is unnecessary to state the particulars in which they differ from each other. The plaintiff having died shortly after the institution of the action, his death was suggested, and the action was revived in the name of his administrator, George S. Bernard. Thereafter the defendant filed a demurrer to the third and fourth counts of the declaration, in which demurrer the plaintiff joined. The court sustained. the demurrer to the third count, and overruled the demurrer to the fourth count; and thereupon the defendant pleaded not guilty to each count of the declaration, except the third, and issue was joined on the said plea. The issue was tried by a jury, which, on the 3d day of June 1873, found a verdict in these words: "We, the jury, find for the plaintiff, and assess his damages at eighteen hundred and eighty-five dollars and eighty-six cents, with legal interest thereon from December 16th, 1872, till paid." Whereupon the defendant moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence in the cause; which motion was overruled, and judgment was thereupon rendered according to the verdict. Two bills of exceptions were taken by the defendants to certain rulings of the court in the progress of the trial, and were made a part of the record. One related to the instructions which were given or refused 1877. March City of Petersburg V. Appleg❜h's by the court to the jury, and the other to the ruling of Term. the court in regard to the motion to set aside the verdiet and grant a new trial. In the former, so much of the evidence was set out as was deemed to be necessary or proper to show the relevancy of the instruc- admʼr. tions. In the latter, is contained a certificate purporting to be of all the facts which were proved on the trial. That certificate is in substance as follows: "The court certifies that after the jury were sworn to try the issue joined in this cause, the following facts. were proven before the jury on the part of the plaintiff, viz: That the vessel of the plaintiff's decedent, Wm. Applegarth, called the North Carolina, which was in thorough order and repair, and of the value of $3,500 or $4,000, arrived at Petersburg about two o'clock A. M. of 15th October 1872, with a cargo of 131 tons of coal, consigned to Marks & Friend, of that city. That she was not able to get to their wharf, in consequence of the river being blockaded by a dredging machine lying alongside the steamer Fanny Lehr, at the wharf rented by the Powhatan Steamboat Company from the city, and made fast to another wharf of the defendant, below, known as the city wharf. That next morning, 15th October 1872, the tide being low, she could not get up to Marks & Friend's wharf; and while waiting for the next high tide, Marks & Friend sold the coal to B. S. Burch, with the understanding that Burch was to send a tug at the next high water to tow her down the river; but Burch failing to do so, and the captain of the vessel, concluding not to wait, commenced, about three o'clock P. M. of 15th October 1872, to haul up to Marks & Friend's wharf, and had proceeded in that direction about twenty feet, perhaps half the length of the whole vessel, which is eighty-six feet 1877. March long, when he received a message from Burch that he Term. would tow her down on the next high water, which would be about two o'clock A. M. That the vessel was immediately made fast to the city wharf, where V. she sunk on the next low water, about nine o'clock P. Appleg'h's adm'r. M., from a pile going through her bottom. And that City of Petersburg on discovering that she was leaking, which was about twenty minutes to nine o'clock, her pumps were started, but she sunk in about twenty minutes. That every effort was made by the captain and crew to save the vessel and cargo and prevent their sinking, and every proper effort made to raise the vessel and cargo and repair the injuries done to the vessel by the sinking as quickly and cheaply as the same could be done. That the actual and necessary costs of raising and repairing the vessel was $1,235.86, and the actual and proper amount of demurrage was $650. That neither the captain nor owner of the vessel paid any wharfage, but they were liable to pay wharfage under the city ordinance. That she was sunken by an oak pile through her bottom, which was sawed off by divers about eighteen inches or two feet from the bottom of the river, and the divers traced the pile, by feeling, about eighteen inches or two feet in the sand, and that the inclination was from the wharf, and that the pile entered the vessel about nine or ten feet from the keel and about five feet from her main mast, and that an old piece of log lying between the pile and the wharf, about three feet long and eight inches in diameter, was pulled out by them; that the pile that entered the vessel inclined in the direction of the opposite side of the river, and was an oak pile, and in the opinion of an expert was a fender pile, or part of the city wharf, and that from where the pile entered the vessel to the wharf was about two and a half feet; that the pile 1877. March Term. City of V. Appleg❜h's that entered the vessel was visible at low tide; that the river appeared to have been dredged not nearer than two feet from the city wharf, but did not appear to have been dredged level, but in holes, and the Petersburg dredging on the outside of the pile would have caused it to incline outwards; that about two or three years adm'r. ago, when one of the plaintiff's witnesses named Brown was at Petersburg, in command of another vessel, E. H. Stainback, the port warden of the city of Petersburg, directed him to haul his vessel about another length astern, as there was an obstruction or something else in the way, but what was not recollected, and that after the sinking of the North Carolina witness reminded Stainback of it; but it was also proved by the defendant that that pile was at a different place from the one where the North Carolina was sunk; that after the sinking, of the North Carolina, some two or three inches of a stob under the water, and about two feet from the wharf, was seen by a witness, but the size of the stob, or whether it entered the vessel or not, could not be seen, and that the stob was five or six feet from the guards of the vessel, and that the stob seen under the water was an oak pile and inclined outward from the wharf. And it was further proved, that on the 25th day of October 1872, whilst the said vessel was being raised, the late William Applegarth addressed and caused to be delivered to E. H. Stainback, port warden of said city, and to Franklin Wood, the mayor thereof, true copies of a notice which is in the words and figures following to-wit: To the Hon. Franklin Wood, mayor of the city of Petersburg: Dear Sir:-This letter will inform you, and through you the city of Petersburg, that I shall hold said city responsible for all damages which I have sustained or shall sustain by reason of the sinking of 1877. March City of Petersburg V. my schooner the North Carolina' and her cargo (one Term. hundred and five tons of coal), whilst lawfully lying at the wharf of said city known as 'the city wharf,' on the 15th day of October 1872. Said sinking was caused by the carelessness and negligence of said city. Appleg❜h's adm'r. I am now engaged in raising said vessel and her cargo, and will be glad to have from said city whatever assistance she may render. Very respectfully, yours, Wm. Applegarth, by Jones & Bernard, his attorneys.' "And the court further certifies that the defendant, to maintain the issue on his part, proved the following facts, viz: That when the wharf of the defendant at which the North Carolina was sunken was built, all its fender piles were oak, and all the piles on which the string timbers rested were pine. That the fender piles were placed about thirty feet apart, and are there still and none of them missing, and that the fender piles are all visible at high water, and that the oak pile on which the vessel sunk is smaller and not like the fender piles at said wharf. That some time between 20th and 30th September 1872, that part of the river along the whole length of the city wharf at which the North Carolina sunk, had been dredged to within about two feet of said wharf; and that the reason why it was not dredged nearer the wharf was for fear said wharf might be undermined and caused to fall; and that it was more than probable if the pile on which the North Carolina sunk had been there when the dredging was done, the shovel of the dredge would have struck it; that one of the witnesses was a member of the board of directors of the Lower Appomattox company, whose president and directors are appointed by the common council of the city of Petersburg, and that the said city, for the last three years, has furnished the money to open and keep open |