(dissenting) — Aside from the question
of law discussed in the opinion of the court, the motion for nonsuit should have been sustained. Furthermore, it is held that negligence is never presumed, and a reading of the record in the light of all of the concomitant facts and circumstances convinces me that the defendant was not negligent and that the plaintiff was guilty of contributory negligence. He negligently anchored his pile-driver in a place where the waters were navigable, and was in or very near the course of passing vessels. The Potter was maintaining its course from the Burke fish-trap to its beacon on the north shore of the stream. If the pile-driver had been anchored under the lee of the Burke fish-trap, as plaintiff contends it was, it would have been impossible for the Potter to have collided with it without lessening its speed and steering to the south; in other words, to have described a circle from the Burke fish-trap to the south instead of pursuing its direct course, as all of the testimony shows that it did. All of the physical facts — the very fact that there was an accident at the place it occurred *608—shows beyond the power of plaintiff to dispute that he is mistaken when he says that he anchored his pile-driver below the Burke fish-trap and out of the channel. He anchored in a place where thirty-three feet is extreme low water, and if negligence is not to be presumed, if we are not to impute a willful design to defendant to run his pile-driver down and sink it, it seems impossible for the minds of reasonable men to hold the defendant to the entire blame for the collision.
If the ruling of the court upon the motion for a non-suit is to be sustained, the case should be reversed upon still other grounds. The law is that the right of navigation is paramount. The corollary of this is that one who obstructs a navigable stream by anchoring a vessel in or near the course of passing vessels takes upon himself a burden of extraordinary care, and while, under some circumstances, it would be proper for a court to lay down the abstract proposition that, when a collision with an anchored vessel occurs, there is a presumption of law that it is the fault of the vessel in motion, it was error to so instruct in this case.
Instruction No. 13 is not fortified by counsel for respondent by the citation of any text or authority. He contents himself by saying, “This instruction is simply a declaration of the doctrine res ipsa loquitur,” and that a presumption exists in favor of a moored as against a moving vessel. We may well imagine a case where a court would put the burden upon a moving vessel as against one anchored in the daytime even in midstream or the fairway of a harbor. For, if it be there, the pilot of the moving vessel seeing and knowing, or having opportunity to see and know'its presence, the court might properly instruct that a presumption of negligence arises against, or, .more properly speaking, the burden of proof is upon, the moving *609vessel. But this case affords a striking illustration of the fault of seizing upon some abstract proposition gathered from the whole body of the law and rehearsing it to a jury simply because there has been a collision between a moving and an anchored vessel.
The true rule is noticed in the majority opinion, but it is nullified by the approval of instruction No. 13. The rule governing this case is simple. Defendant had a right to navigate and its right was paramount to the right of others to use the stream for anchorage, with the limitation, however, that its right of navigation must not be so exercised as to wantonly or willfully injure other rights. That the pile-driver was anchored in navigable water is not disputed, and whatever the course of the Potter may have been, so long as it was in navigable waters its right was paramount. People v. St. Louis, 5 Gilman 351, 48 Am. Dec. 339; Warner v. Ford Lum. & Mfg. Co., 123 Ky. 103, 93 S. W. 650, 12 L. R. A. (N. S.) 667; Porter v. Allen, 8 Ind. 1, 65 Am. Dec. 750; Lewis v. Keeling, 46 N. C. 299, 62 Am. Dec. 168; Post v. Munn, 4 N. J. L. 67; Horn v. People, 26 Mich. 221; The John H. Starin, 122 Fed. 236.
If this action had been brought under the maritime law upon a finding that the defendant was negligent, the damages would have been divided between the two vessels. The Hilton, 213 Fed. 997; The Passaic, 76 Fed. 460; The Itasca, 117 Fed. 885.
This being so, and there being no evidence, other than the happening of the accident, of a wanton or willful disposition — design, as some of the books put it— to destroy the property of plaintiff, it follows that instruction No. 13, which put a presumption of fact upon defendant that the collision occurred through the fault of the moving vessel, was error.
The opinion of the court is faulty for another reason. *610It is said: “An accident happened which in the ordinary course does not happen if those managing the instrumentality exercise proper care, and the presumption of negligence attaches.” We have held so many times that no presumption of negligence arises from the mere happening of an accident that it would be idle to assemble our cases, and to now say that an accident happened which in the ordinary course does not happen if those handling the instrumentality exercise proper care, is to absolutely destroy the defense of .contributory negligence. For accidents do happen when those managing the «more forceful instrumentality are in the exercise of reasonable care.
Furthermore, I. protest against the holding that “the effect of defendant’s contention would be to exclude others from using the river, regardless of either the necessity or the circumstances or the requirements of careful navigation, and would be a claim of immunity from carelessness or negligence on account of a superior right.” Defendant has not contended that it had an exclusive right to navigate the stream, nor is there any testimony to show that the Potter was not carefully navigated. The contention of the defendant is that it has a paramount right to move its vessel in navigable waters, and that it cannot be charged with negligence unless the testimony shows conclusively, or by preponderating inferences, that it wantonly or wilfully wrecked the plaintiff’s pile-driver.
The complaint was drawn on the theory that the pile-driver was totally destroyed, • and general damages of $2,500 was asked. The court admitted evidence of the original cost of the pile.-driver, which was about $6,000, and, over defendant’s objection, admitted testimony to show the amount expended in raising and repairing the hull and the replacement of the machinery and tools that were lost beyond recovery. The testi*611mony should not have been received unless the complaint were amended and an opportunity given to plead to the issue tendered at the time. Upon new trial the complaint should be amended with leave to answer.
I think, too, that the opinion places a wrong construction upon the case of West v. Martin, 51 Wash. 85, 97 Pac. 1102, 21 L. R. A. (N. S.) 324. The rule there laid down is that the measure of damage in a case like this is the cost of repairing. Recovery is not to be limited by a sum “not exceeding the value of the pile-driver at the time and place of the injury,” but by the cost of repairing, not exceeding the amount demanded in plaintiff’s complaint. In this the trial court also erred, for the jury was instructed that the plaintiff might recover the cost of raising and repairing, not to “exceed the sum of $2,500 asked in the complaint, and provided the cost of repairing did not exceed the value of the pile-driver and equipment before the collision.”
After plaintiff had outlined his case as contrary in fact and in law to the case made in the pleadings, the court should have excluded or stricken all testimony going to the value or first cost of the pile-driver. It was prejudicial and misleading, and, when considered in the light of the instruction, was an invitation to the jury to consider the first cost as a factor in the equation of damages. Its tendency must have been to enhance the damages over a normal or just recovery.
Main, C. J., concurs with Chadwick, J.