The facts of this case are few and simple. The principles of law involved are familiar and well settled. The only difficulty arises in their application. In admiralty the rule is that when a vessel in motion comes into collision with one that is at anchor, the presumption is that the former is in fault; and she can only exonerate herself by showing that it was the fault of the vessel at anchor, or the result of circumstances utterly out of her power to control. 1 Parsons Mar. Law, 201, and cases there cited. Both parties substantially concede this to be the rule. The same rule prevails in the common law courts, whenever they are called upon to administer justice in cases of this character.
But the defendants claim that the presumption is one of fact, and not of law ; and that the plaintiff cannot recover, inasmuch as the court below has not found, in terms, that the defendants were guilty of negligence ; that negligence is a question of fact, and as the Superior Court has not found it as a fact, this court cannot say, as matter of law, that negligence exists. They cite in support of this position Beers v. Housatonic Railroad Co., 19 Conn., 566, and Williams v. Clinton, 28 Conn., 264.
Negligence, in a legal sense, is the omission of some duty imposed by law. The law determines what the duty is ; the evidence in a cause determines whether it has been omitted. The former is a question for the court; the latter for the jury. To illustrate: the law requires that when two persons, in carriages, meet each other upon the highway, each shall turn to the right. Whether, he does so or not is a question of fact. The law requires that a man shall in all cases act with reasonable care; what is reasonable care, and whether a man so acts, are questions of fact. Cases often arise in which the facts- and circumstances are so numerous and complicated that it is difficult for experienced lawyers and judges to tell what a man’s duty is. Some of the alleged facts upon which the duty depends may be in dispute. When determined by a jury the court can declare the duty ; and then the jury again are to determine whether the duty has been omitted. Thus it often happens that negligence in a given case depends so *211much upon what the law requires, and what the law requires depends so much upon particular facts and circumstances, that it is said that negligence is a mixed question of fact and law. In strictness, however, questions of law and fact in such cases, though intimately connected, and dependent upon each other, are separate and distinguishable from each other; and it is the duty of the court, in jury trials, so to distinguish .them that the jury can perceive clearly what they have to pass upon, and the court, when called upon to try both questions, will experience little difficulty if the two are kept entirely distinct in the mind. Thus it will be seen in what sense, and to what extent, negligence is a question of fact.
The duty which the law imposes upon a man varies widely according to the circumstances in which he is placed. , In some circumstances slight care will exonerate him from blame; in others ordinary care is required; in others still, the law requires the utmost care and holds him responsible if he fails to exercise it. The last class embraces the case now before us.
What duty then devolved upon those on board the pro-pellet ? The answer is apparent; to use the utmost care to prevent a collision; to pass safely, unless prevented by circumstances utterly out of their power to control. The case of The Fannie, 11 Wallace, 238, was where a steamer and schooner were approaching each other on nearly parallel lines. Mr. Justice Strong, in giving the opinion of the court, says: “The steamer.was bound to keep out of the way of the schooner, and to allow her a free and unobstructed passage. Whatever was necessary for this it was her duty to do, and whatever obstructed or endangered the schooner in her course it was the duty of the steamer to avoid.”
The plaintiff having proved that his own vessel was at anchor, and that the defendants’ propeller, in attempting to pass it, came into collision with it, he established a prima facie case, and was entitled to a judgment unless the defendants could show, either that the collision was occasioned by the fault of the plaintiff, or that it was the result of circumstances utterly out of their power to control. The burden *212of proof changed and was on the defendants. We think they have failed to establish their defence.
As the dredging machine was at anchor, and powerless either to cause or avoid a collision, the law imposed no duty upon it, and consequently no negligence can be imputed to it, unless it was anchored in an improper place. . The court expressly finds that the plaintiff was in no default in this respect, unless the law implies neglect under the circumstances. But the law implies no negligence unless it is clear that some legal duty has been omitted. It was the plaintiff’s duty certainly to leave ample room in the channel for the steamer and all other vessels to. pass safely. This he did, and the court has so found. He had no right to put any unreasonable obstructions in the channel. We cannot say as matter of law, that the very small fraction of the channel occupied by him was unreasonable under the circumstances.
It only remains to inquire whether the defendants have shown that the collision resulted from circumstances beyond their control.
It is found that after the propeller “ suddenly took a sheer” towards the machine, all that could then be done to avoid a collision was done. But the all-important question is, what 'caused the propeller to take a sudden turn ? That question the learned judge, who tried the cause in the Superior Court, was unable to answer. He could not say from the evidence, that the defendants might not, by the use of such diligence as the law required of them, have prevented the sudden turn. Nor does he find that they could. But the burden being on the defendants, the defence fails.
A question is made respecting a look-out. It is conceded that the law made it the duty of the defendants to have a competent and proper look-out on board the propeller. A person acting as “ captain, pilot and look-out” at the same time, is not a proper look-out. The Ottawa, 3 Wallace, 268; The Hypodame, 6 Wallace, 216. There being no other person! engaged as a look-out, the defendants clearly neglected their duty in this respect. But it is not certain that the accident was the result of that neglect. If it was, the liability of the *213defendants could not be questioned. If it was.certain that it was not, the defendants would not be liable on that ground. If this was a turning point in the case, it would be material to inquire on which party is the burden of proof ? Must the plaintiff, as in ordinary cases of negligence, prove that the injury was in consequence of the negligence ? Or will the law, upon proof of the' negligence and the injury, presume that the one was caused by the other, and throw upon the defendants the burden of proving the contrary ? But we deem it unnecessary to consider this question, as the presumption of law is, upon the whole cage, that the defendants’ negligence, in this or in some other way, caused the injury. As they have failed to remove this presumption, we advise the Superior Court to render judgment for the plaintiff.
In this opinion the other judges concurred.