If one who has posted a notice of entire prohibition permits it to be habitually disregarded, as, for instance, a notice not to ride on the platform of a street railway car, or in the baggage car of a train, a practical invitation to violate it may be inferred from habitual usage which is known to him. Long continued practice to the contrary may have the effect to supersede or show a waiver of the rule. O’Donnell v. Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Railroad v. Langdon, 92 Penn. St. 21; Waterbury v. New York Central & Hudson River Railroad, 17 Fed. Rep. 671. The notice in the present case was not one of entire prohibition, but, in the opinion of a majority of the court, the plaintiff upon the evidence had a right to go to the jury upon the question whether it still remained in force; and, according to the terms of the report, there must be
Judgment for the plaintiff.[[155]]
GARFIELD COAL CO. v. ROCKLAND LIME CO.
Supreme Judicial Court, Massachusetts, June 23, 1903.
Reported in 184 Massachusetts Reports, 60.
Tort, by the owner of the coal barge Western Belle, for injury to that vessel by grounding on a ledge of rock embedded in the mud at the bottom of the defendant’s dock at Rockland, Maine.
In the Superior Court the case was tried by a judge without a jury.
“It appeared at the trial that defendant was part owner of a dock, and used it for the discharge of cargoes of coal consigned to it. Plaintiff had sold coal to the defendant, and sent it a barge loaded therewith.”[[156]]
The plaintiff requested the judge to make certain rulings, including the following:—
“4. It is not necessary for the plaintiff to show that the defendant knew of the ledge; it is sufficient if its existence could have been discovered by reasonable diligence.”
The judge refused to make any of the rulings, and found for the defendant. The plaintiff excepted.
Lathrop, J.... The general rules of law which are applicable in cases of this character are the same in England and in this country, and are the same at common law and in admiralty. They are as well stated in the case of Nickerson v. Tirrell, 127 Mass. 236, 239, as perhaps in any case: “The owner or occupant of a dock is liable in damages to a person who, by his invitation express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock,[[157]] but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care, if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him, he is guilty of negligence and liable to the person who, using due care, is injured thereby. Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; Thompson v. Northeastern Railway, 2 B. & S. 106; Mersey Docks v. Gibbs, L. R. 1 H. L. 93.” Other cases bearing upon this point are: Smith v. Burnett, 173 U. S. 430; Barber v. Abendroth, 102 N. Y. 406; Barrett v. Black, 56 Maine, 498; Sawyer v. Oakman, 1 Lowell, 134, s. c. 7 Blatchf. 290; The John A. Berkman, 6 Fed. Rep. 535; Pennsylvania Railroad v. Atha, 22 Fed. Rep. 920; Smith v. Havemeyer, 36 Fed. Rep. 927; Manhattan Transportation Co. v. Mayor, 37 Fed. Rep. 160; Union Ice Co. v. Crowell, 55 Fed. Rep. 87. The rule is the same in England. Gibbs v. Liverpool Docks, 3 H. & N. 164; s. c. nom. Mersey Docks v. Gibbs, 11 H. L. Cas. 686, and L. R. 1 H. L. 93; The Moorcock, 13 P. D. 157, and 14 P. D. 64.