Astoria Railroad v. Kern

76 P. 14 | Or. | 1904

Mr. Justice Wolverton,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. Preliminarily, it is urged that plaintiff cannot maintain the action because the trestle damaged is constructed upon pile£ driven in the bed of a navigable river between high and low tide. The action, however, is given by statute (B. & C. Comp. § 4627), if it may not be otherwise maintained.

2. Numerous assignments of error are noted to the admission of testimony in support of the plaintiff’s cause of action, as (1) in admitting the testimony of G. Holzhay as to the manner in which the barges were moored; (2) in admitting that of D. B. Johnson touching the velocity of the wind, and of E. A. Peterson to show the force and velocity thereof after 1 o’clock of the morning of December 22d; (3) in admitting the testimony of several witnesses touching the condition of the lines with which the scows were moored; (4) in admitting the testimony of others as to the necessity of maintaining watchmen upon the vessels; and (5) in admitting the testimony of Daniel McVicker as to the character of the storm. It may be said, generally, of these assignments, without examining them in detail, that the testimony to which they relate was all material and competent, some of it being more or less remote, but not to such an extent as to render its admission prejudicial. McVicker’s testimony touching the character of the storm is perhaps more remote than any of the rest. He said, in effect, that the storm was a heavy one—a severe gale ; that the wind shifted once in awhile to the west and northwest, and sometimes was severe; that such a storm does not happen very frequently; that it generally blows from some other direction ; that a storm of that kind occurs almost every winter, but that the one in question might have been a little severe ; and that, on the night of the 25th of December, when the barges went into the trestle, he was outside of the Columbia River, some 15 or 16 miles away. The storm seems to have come from seaward, and that of which the witness speaks was in all probability the same as that which caused the barges to break from their anchorage. The difference in position might have made some difference in the type of the storm, but it is very likely that it was not so great as to render the testimony wholly irrelevant. We cannot say, therefore, that it was error not to reject any of the testimony to which objection was interposed.

3. Defendant’s counsel next urge that there is no evidence to support the findings of fact in two particulars material to the plaintiff’s cause of action, namely, that defendant neglected to leave the barges in charge of watchmen, and that they were insecurely anchored or fastened; and in a third particular relating to the defense touching the manner of the storm that caused the vessels to break from their moorings and drift upon plaintiff’s trestle. The findings of fact of the trial court are conclusive upon us, if there was some competent evidence offered and admitted at the trial reasonably tending to their support, and, “whether or not that court was justified by the weight of evidence in making the findings, this court cannot consider”: Hicklin v. McClear, 18 Or. 126, 137 (22 Pac. 1057, 1061); Bartel v. Mathias, 19 Or. 482 (24 Pac. 918); In re Fenstermacher v. State, 19 Or. 504 (25 Pac. 142); State v. Myers, 20 Or. 442 (26 Pac. 307). The evidence, as it relates to the defendant having a watchman in charge of the barges at the time, is really not much in conflict, and is in apt support of the findings. One watchman was usually provided for all of the barges, but not even one was aboard on that occasion. There were three men, however, on what is designated as the “drill scow,” but they seem not to have been charged with the duties of watchmen, so that there can be no further inquiry here upon the subject.

Touching the manner of mooring the vessels, and with what kind of ropes and instrumentalities they were secured, there is much conflict. The defendant’s witnesses show that much care and circumspection were observed in this respect, and that new and secure ropes were used, and all that were necessary to provide against the influence and force of the usual extremes of the weather and tides that might be expected at that time of the year; while upon the other hand it must be admitted there was much testimony tending to show that the ropes were rotten and weak and wholly insufficient. It is argued, however, that plaintiff’s witnesses had not the means or facility of examining and ascertaining the quality and condition of such ropes and fastenings that the defendant’s had, but that goes to their credibility, and is for the trial court in determining the weight of evidence. We are not permitted to examine it here for that purpose. Unquestionably, there is ample evidence in the record upon which the findings could reasonably be based, so that it is not within our province to consider it further. The testimony concerning the stress of weather is of the same character, and we are concluded by the findings in this as in the other particulars.

Based upon these considerations, the judgment of the trial court will be affirmed, and it is so ordered.

Affirmed.