The opinion of the court was delivered by
Sergeant, J.This case presents the usual contrariety of evidence, but in the law laid down by the court below, we do not perceive that there is error. If the plaintiff was innocent in every respect, and sustained damage by the default of others navigating the canal, he is entitled to indemnity from some of them, and possibly from all concerned, had he chosen to join them. It is contended by the plaintiffs in error, that as it was the duty of the ascending boat,'by'the act of 10th April, 1826, to wait at a narrow place in the canal till the descending boat had passed, tire former only was answerable to plaintiff and not the latter. As between themselves, no doubt this direction of the act would settle the matter, had the descending boat been injured by non-compliañce with the law on the part of the ascending boat. But when a third boat is concerned, there is a duty towards her which is to be attended to. One man’s dereliction of his duty toward me, will not authorize me to abandon my duty towards a third person, and thereby subject him to a loss. The rule, therefore, is well stated by the court below: the defendants should have looked out for danger in time, and guarded against it while it was possible to do so, and if they neglected to do so till it was too late to prevent the collision, they must be deemed to have been guilty of that want of due caution which every one, who navigates the canal, is bound to use to prevent the accidents to which a thronged navigation is liable.
Judgment affirmed.