By the Court,
Mullin, J.Negligence is defined to be the omission to do that which ought to be done. In Webster’s Dictionary, and in Worcester’s, it has a more general meaning, which is, the habitual omission to do that which ought to be done.
Jacob, in his Law Dictionary, says, negligence is when a person neglects or omits to do a thing which he is by law obliged to do.
This difference in the definitions is rather in phraseology than idea. By them all, negligence consists in omitting to do.what a person ought to do. It is of the essence of negligence that the party charged should have knowledge that there was a duty for him to perform; or he must have omitted to inform himself as to what his duty was, in a given case. Knowledge is presumed, in a great number of cases, and the party will not be permitted to prove that he had not knowledge of his duty.
Every man is presumed to know the law; and hence when the law imposes a duty on a man, it presumes that he knew of it; and it will not permit him to prove that he did not. When the specific duty is not imposed, by either the statute or the common law, the party alleging negligence must show that the accused was cognizant of the duty he is charged with having neglected. It is not necessary that this should be established by direct evidence; it may be, and almost universally is, inferred from the *157nature of the duty, or the facts and circumstances of the case.
I am not aware of any statute requiring those navigating boats on the canals to have the bottoms of such boats so made as to permit tow-lines to pass under them without obstruction. But the duty is most obvious the moment a person becomes acquainted with the manner in which boats pass each other in the canal. And the person omitting to keep the bottom of his boat in the condition required to permit the free passage of the tow-line of another boat under her, is responsible for whatever damages naturally and necessarily flow from his neglect.
To perfect this liability, several things must concur :
1st. He must be the owner, lessee or captain of the boat.
2d. The bottom of his boat must be such as not to permit the free passage of the towing line.
3d. He must have known of it before the accident, a sufficient length of time to have enabled him to avoid the injury; or,
4th. The defect must have continued so long as to satisfy a court or jury that if he had paid proper attention to his boat he must have discovered it.
5th. Damage must have been sustained by reason of the defect.
There is no question made, in this case, but that the defendant is the proper party defendant, if the action can be maintained. '
The towing line of the plaintiff’s boat was caught on the bottom of the defendant’s boat, and damages have been sustained by the plaintiflj by reason of the catching of said line. Three of the four conditions necessary to be proved in order to maintain the suit have been established, in this case, and it only remains to inquire whether the referee was justified in finding the fourth.
When did the catch attach to said boat ? There is no *158proof that it was put on by the defendant, or any one in its employ. It is not proved that it was on an hour before the accident happened; nor that it was known to be there by the defendant, or any of its agents, until the moment it occurred.
I admit it was the duty of the defendant to so construct the boat as that towing lines could pass freely under it, and that it should cause examination to be made, from, time to time, to see that the bottom continued in such condition. The boat, in passing through a lock, or over a stone or other hard substance in the bottom of the canal, might tear up the planking on the bottom, so as to catch and retain a rope passing along it. The end of a plank might have become loosened and sprung off—a spike or bolt might become loose and be projected beyond the surface of the plank and catch and retain a towing line—■ and the defect not have existed ten minutes before the accident.
It is not shown, in this case, but that the injury was occasioned in one of the ways suggested, and from a cause originating within the period named.
hTor can we presume- that the bottom of this boat was known to the. defendant to be in a condition not to allow the free passage of towing lines, for such a length of time as to have made it their duty to put it in proper order. If they had such knowledge, they were guilty of negligence in not putting the boat in good order. But negligence is never presumed. (1 Cowen & Hill’s Notes, 298, 478.)
In the case of Olmsted v. The Watertown and Rome Railroad Company, decided at the general term in this district in October, 1855, the plaintiff sued the defendant for damages for negligence in killing his horse. The negligence charged consisted in the company’s not maintaining a "fence of the requisite height along th.e side of-their road, whereby the horse strayed on to the railroad track and was killed by an engine. The only evidence of a defect in the *159fence was that one of the stakes which supported the upper rail was split, and one of the rails had fallen down, so that it was as low as the rail which was next below it, thus leaving the fence, at that point, below the required height of a sufficient fence. It was further proved that there were marks of the horse’s foot on the top of the upper rail, showing, as the plaintiff’s counsel argued, that the horse had gone over at that place. It was insisted, on the part of the defendant, that there was no evidence of negligence; that it did not appear that the fence had been defective an instant before the horse passed over; but on the contrary, that the marks of the horse’s foot being left on the rail demonstrated that he had struck in passing over, and thus splitting the stake and letting down the bar. The court so held, and reversed the judgment of the county court affirming that off the justice, which was in favor of the plaintiff, for the value of the horse.
The principle decided in that case is decisive of this. The defective condition of the bottom of the boat may not have existed sufficiently long to have imposed any duty, in reference to it, on the defendant. And if its condition was not known, or had not exisied long enough to charge the defendant with notice of the defect, it is not guilty of neglect. And there is no evidence in the case from which any such inference can be drawn.
Without stopping to consider whether the defendant’s boat having taken the side next the tow-path, thereby rendering it necessary for the towing line to pass under her bottom, which it would not have done if she had kept on the heel-path side, where she belonged, had any effect on the question of liability, I am quite clear that no negligence is proved. The change of place, at the request of the plaintiff, thereby bringing about the accident, cannot increase, if it does not lessen, the force of the evidence of negligence. It is true that if the defendant’s boat had been in proper order, the change of place could not have *160produced the injury. But we cannot say but that it had some influence in producing it; and if it had, the plaintiff cannot hold the defendant responsible for it.
[Onondaga General Term, October 1, 1861.Mullin, Bacon, Allen and Morgan, Justices.]
In any aspect of the case, it seems to me, there is no evidence of negligence, nor any ground on which it can be made liable.
The judgment must therefore be reversed, and a new trial ordered; costs to abide the event.
Hew trial granted.