No. 3459 | 7th Cir. | Feb 18, 1925
On and for several years prior to July 13, 1922, the appellee, the city of Chicago, owned a waterworks crib used in connection with its distribution of water to the residents of the city, known as the “Carter H. Harrison Crib,” and located on the navigable waters of Lake Michigan at a point north and east of the harbor entrance to the city. At that time the appellant, the Goodrich Transit Company, owned and operated the Indiana, a wooden freight and passenger steamer, duly enrolled and licensed and engaged in interstate commerce on the Great Lakes. On said 13th day of July this steamer, laden with merchandise and having on board a number of passengers, was on a voyage from Grand Haven, Midi., to Chicago, III. Somewhere near 6 o’clock on the morning of the 13th, her master sighted a crib, known as the “Wilson Avenue Crib,” which is located 3% miles north of the Carter II. Harrison Crib. He then changed his course to south by east in order to enter the harbor. This course led him in the direction of the Harrison Crib. After proceeding about one-half the distance from the Wilson A.venuo Crib to the Harrison Crib, he ran into a fog. After entering the fog the steamer was slowed down to a speed of from 2 to 3 miles an hour, and while thus proceeding the Harrison Crib was suddenly discovered ahead at a distance variously estimated by .the witnesses as from 50 to 150 feet. It was too late to avoid a collision, and the steamer struck the crib and was injured.
The appellant charged in its libel that the city was at fault in not sounding its fog bell on the Harrison Crib as it should have done under the circumstances and as it was obliged to do by the permit of the government to erect and maintain the crib. The appellee in its answer denied that it failed to sound the fog bell and specifically alleged that at the time the vessel struck the crib, “and for some time prior thereto, the fog bell on said Carter 11. Harrison Crib had been ringing and was being rung and sounded regularly, continually, and at very brief intervals, and continued to be rung and sounded by the junior crib keeper on duty at said crib at said time, prior to said time, and until some time after the hour of the alleged collision, and that every care and precaution was taken and exercised by said respondent to give every warning possible to avoid any accidents whatsoever, and that had said steamer been operated, managed, and controlled at said time with such due care and caution as the circumstances would require, the alleged collision would not have occurred.”
Upon the issues thus made the ease was tried. The appellant’s evidence was directed to the failure of the city to sound the fog bell under the circumstances, and the appellee introduced no evidence except that tending to show that the fog bell was properly sounded. The trial court found that both parties were at fault, that the city was at fault for not sounding the fog bell, and “that under all the circumstances the steamer Indiana should have stopped until the fog lifted or until it could have aroused the attendants on the crib and received the information necessary to a safe forward movement.”
The appellant, by its assignment of errors and upon argument here, insists that neither the pleadings nor the evidence warrant the finding that the steamer was at fault in the collision. The defense that the steamer was at fault is an affirmative defense, and it must be specifically alleged and proved. In all legal proceedings the judgment must be in accordance with the allegations and the proofs. The court will
Appellee insists that its answer is amply sufficient to support ‘the finding that the steamer was at fault. The. only part of the answer that refers to the conduct of the steamer is the part above quoted. That allegation is to the effect that the fog bell was being rung and that had the steamer heeded the warning the collision would not have occurred. In other words,' the only fault imputed to the steamer by the statement in the answer, and this is a mere conclusion of the pleader, was in its officers not hearing or heeding the ringing of the fog bell. As the trial court found and the evidence shows that the fog bell was not rung, this averment as to want of care on the part of the steamer disappears. The admiralty rules require that “all answers shall be full and explicit and distinct to each separate article and separate allegation in the libel.” There is nowhere in'" the answer any direct averment that the steamer was being handled in a negligent manner; that is, without a proper lookout, as now claimed by the appellee, or without coming to a stop as suggested by the trial court. There was therefore no pleading by the appellee upon which the court could base its finding that the steamer was at fault.
But passing this point we are of the opinion that the trial court erred in finding that the steamer was at fault upon the evidence. “Defense of contributory negligence on the part of libelant must be affirmatively proved by a preponderance of the evidence.” The Nellie (D. C.) 130 F. 213" court="E.D. Pa." date_filed="1904-05-12" href="https://app.midpage.ai/document/campbell-v-wetherill-8754507?utm_source=webapp" opinion_id="8754507">130 F. 213; Adams v. Eastern Trans. Co. (C. C. A.) 291 F. 756" court="1st Cir." date_filed="1923-08-23" href="https://app.midpage.ai/document/adams-v-eastern-transp-co-8831750?utm_source=webapp" opinion_id="8831750">291 F. 756, and cases there cited. There is no question that the appellee failed to ring the fog bell. It was not rung until after the collision. This negligence on its part was obvious and. inexcusable. “Where fault on the part of one vessel is established by uncontradictory testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.” The City of New York, 147 U.S. 72" court="SCOTUS" date_filed="1893-01-03" href="https://app.midpage.ai/document/alexandre-v-machan-93472?utm_source=webapp" opinion_id="93472">147 U. S. 72, 13 S. Ct. 211" court="SCOTUS" date_filed="1893-01-03" href="https://app.midpage.ai/document/the-city-of-new-york-1087619?utm_source=webapp" opinion_id="1087619">13 S. Ct. 211, 37 L. Ed. 84.
In The Victory, 168 U.S. 410" court="SCOTUS" date_filed="1897-11-29" href="https://app.midpage.ai/document/the-victory--the-plymothian-94772?utm_source=webapp" opinion_id="94772">168 U. S. 410, 18 S. Ct. 149, 42 L. Ed. 519, the Supreme Court, said: “As between these vessels, the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymothian must be clear and convincing in order to make a ease for apportionment. The burden of proof is upon each vessel to establish fault on the part of the other. The recognized doctrine is thus stated by Mr. Justice Brown in The Umbria, 166 U.S. 404" court="SCOTUS" date_filed="1897-04-05" href="https://app.midpage.ai/document/the-umbria-94658?utm_source=webapp" opinion_id="94658">166 U. S. 404, 409: ‘Indeed, so gross was the fault of the Umbria in this connection that we should unhesitatingly apply the rule laid down in the City of New York, 147 U.S. 72" court="SCOTUS" date_filed="1893-01-03" href="https://app.midpage.ai/document/alexandre-v-machan-93472?utm_source=webapp" opinion_id="93472">147 U. S. 72, 85, and the Ludvig Holberg, 157 U.S. 60" court="SCOTUS" date_filed="1895-03-04" href="https://app.midpage.ai/document/the-ludvig-holberg-94137?utm_source=webapp" opinion_id="94137">157 U. S. 60, 71, that any doubts regarding the management of the other vessel, or the contribution of her faults, if any, to the collision, should be resolved^ in her favor.’ ”
The appellee has not met these requirements. The claim is that the steamer “did not have proper lookout service.” “It is well settled that the absence of a lookout is not material, where the presence of one would not have availed to prevent a collision.” The Blue Jacket, 144 U.S. 371" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/the-blue-jacket-93325?utm_source=webapp" opinion_id="93325">144 U. S. 371, on page 389, 12 S. Ct. 711" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/the-blue-jacket-93325?utm_source=webapp" opinion_id="93325">12 S. Ct. 711, 718, 36 L. Ed. 469. In the instant ease the steamer had a lookout. It would seem that in a fog when a lookout could not see it would satisfy the requirements that he could and did listen. The fact that he was using the lead line, sounding for depth, does not militate against the fact that he was listening, and that he did not hear the fog bell for the reason that it was not being rung. The evidence does not warrant the claim that the steamer was at fault as to the lookout.
We think that the trial court erred in finding that under the circumstances the steamer should have stopped until the fog lifted or .until it eould have aroused the attendants on the crib and received the information necessary to a safe forward movement. There is no rule of law requiring a vessel to stop in such a place and under such circumstances as are disclosed by the evidehee. The distinction sought to be made between the cases of collision between two vessels and collisions between a vessel and a stationary object such as this crib is fanciful rather than real. In the case of The Benjamin A. Van Brunt, 98 F. 131" court="1st Cir." date_filed="1899-11-08" href="https://app.midpage.ai/document/pearce-v-old-colony-steamboat-co-8867532?utm_source=webapp" opinion_id="8867532">98 F. 131, 38 C. C. A. 668, the Court of Appeals of the First Circuit had before it the case of a collision between the Pilgrim, a passenger steamer, and the schooner Van Brunt while the latter was at anchor. The circumstances
The cause is reversed and remanded to the District Court, with directions to enter judgment in accordance with the foregoing.