237 F. 577 | 6th Cir. | 1916
On August 26, 1913, the steamer Joe S. Morrow, while in tow of two steam tugs, sustained damages through collision with the partially raised lift of a bascule bridge maintained by the Cleveland Terminal & Valley Railroad Company across the old bed of the Cuyahoga, river at Cleveland, Ohio. The Morrow and the tugs were owned, respectively, by the Masaba Steamship Company and the Great Bakes Towing Company. The owner of the Morrow sought to recover these damages through libel in admiralty against the towing company and the railroad company. The towing company in its answer presented exceptions to certain alternative charges of negligence set up in the libel, but the exceptions are not mentioned either in the assignments or the briefs. At the trial both respondents disavowed any complaint of negligence on the part of the Morrow, and the answers were thus confined to charges made by each of the respondents against the other of negligent conduct which caused the damages in issue. At the close of the testimony offered by the
“If title bridge shall be constructed with a draw, then the draw shall he opened promptly by the persons owning or operating such bridge upon reasonable signal for the passage of boats -and other water craft.”
Admittedly, the old river bed in question is navigable. It results that upon receiving or being reasonably chargeable with notice of the approach of a vessel, failure either promptly to open the draw or the lift of a bridge maintained across such a river as this, or, if the facts justify, seasonably to notify the approaching vessel that failure to open or delay in doing so is unavoidable, raises a presumption of negligence which the owner or operator of the bridge must overcome. Dorrington v. City of Detroit, 223 Fed. 232, 245, 246, 138 C. C. A. 474 (C. C. A. 6); Clement v. Metropolitan Railroad Company, 123 Fed. 271, 273, 274, 59 C. C. A. 289; Pennsylvania R. Co. v. Central R. Co. (D. C.) 59 Fed. 190, 192, per Judge Addison Brown, affirmed 59 Fed. 193, 8 C. C. A. 86 (C. C. A. 2); Hartley v. American Steel Barge Co., 108 Fed. 97, 98, 47 C. C. A. 229 (C. C. A. 8). This presumption, instead of being overcome here, was strengthened by the evidence.
While the Morrow was being towed down the river, with the Abbott as its pilot tug and the Alva as the steering tug, the Abbott sounded the customary signals for opening the draw of the Willow Street bridge and also for raising the lift of the railroad bridge. However, when the Abbott came within some 500 feet of the railroad bridge, her captain noticed that the lift of the bridge was not raised to its full height, but was standing at an angle of from 60 to 70 degrees; yet he gave no further attention to the bridge until it was too late to avoid collision between the mainmast of the Morrow and the lift of the bridge. The captain of the Abbott confessedly relied upon the operator of the bridge to cause the lift fully to be raised in time to afford a clearance for the vessel in tow.- The lift of the bridge was operated by electricity, and could be and usually was raised quickly for the passage of boats. The collision occurred between 8 and 9 o’clock in the morning, and the day was bright and clear. No
We therefore conclude that the decree must be reversed, with costs, and the cause remanded, with directions to enter a modified decree, dividing the damages and providing for recovery in accordance with this opinion, unless the railroad company shall upon good cause shown, within a reasonable time to be fixed by the court below, obtain permission to put in.proofs.