60 F. 560 | D. Conn. | 1894
This is a libel in personam against the town of Westport, in the district of Connecticut, to recover damages to the steam barge Hebe, alleged to have been caused by the negligence of said town in not seasonably opening a drawbridge across Westport river, by reason whereof said barge was delayed until she was carried away by the ebb tide, and struck the bottom, and sank. The defenses are denial of negligence, and denial of liability even if there ivas negligence. The question of jurisdiction has
■ The defendant town is located on the banks of Westport river, which is navigable for steam barges such as the Hebe only at or about high tide. In said town, and some 250 to 300 feet above said drawbridge, are certain stores and wharves. At a short distance beyond this point the river becomes a mere shallow stream, and is not navigable. A drawbridge was originally built across said river at the point where the present bridge is located, under a charter granted in 1796 to a private corporation. Said charter provided that the company should malee a draw in said bridge “sufficient to accommodate all the navigation which may pass up and down said river,” but nothing was said about operating said draw. In 1857, said corporation abandoned said bridge, and the defendant town then took charge of, and has ever since maintained, it. No obligation was ever imposed upon any one to opexate said draw, and, down to 1880, the persons in charge of vessels passing through said bridge opened and shut said draw. In 1880, complaint was made that persons passing through said draw did not fasten it properly, and a draw tender was appointed at the town meeting to take care of the draw. After that time a draw tender was appointed at every annual town meeting until recently, when the selectmen took charge of the matter, and employed the draw tender. Such draw tender, with the aid of the selectmen and others, has opened the draw since 1880, and has been paid for such services by the town. It does not appear that any notice of the proposed appointment of such draw tender was inserted in the warning of such meetings, but this does not seem to be material, for, even if such notice might originally have been necessary, the action of the town and of its selectmen since 1880 would constitxite a ratification of such appointment. Town of Rocky Hill v. Hollister, 59 Conn. 434, 22 Atl. 290. A further reason why this point is not material is to be found in the fact that the alleged omission to act, or acts of misfeasance, occurred on this occasion when the draw was in the charge of the ■first selectmen and agent of the town. The town of Westport has never been required by any legislative act to provide an attendant to operate said draw. In other cases where such operation is required, a special provision to that effect has been inserted in the charter for such bridge. The town has provided various kinds of draws at said bridge. The present one was put in some years ago. It is1 a substantial iron draw, which swings in the arc of a circle, is fastened at the ends, and is so locked, when closed, that it can only be opened by a person who understands how to operate it. ' The commerce above said bridge is confined to a few vessels delivering coal at the wharves aforesaid in the town of Westport.
On the evening of October 27, 1891, said steam barge Hebe, 97⅛ feet long and 17⅜ feet beam, and drawing about 6 feet 4 inches, with Sylvester Greenwood, her master and owner, in charge, having 205 tons of coal on board, consigned to Taylor’s dock, just above said drawbridge, reached Saugatuck, some distance below Westport, on said Westport river, and lay there overnight. On the following
The facts stated above are admitted or proved. As to the state of the tide, and the time when the barge neared the draw, and what then occurred, there is the usual iiTeconcilable conflict of testimony. Samuel B. Wheeler, the town agent and first selectman, having heard the signals to open the draw, came down on the bridge, and, having secured the assistance of several persons, tried to open the draw. The lever would not move, as the draw was locked underneath. They got a boat, unlocked the draw, and finally succeeded in opening it. Meanwhile the barge had slowed up, and was waiting at a distance of about 75 feet from the drawbridge. When it was opened, she came up into the draw, and, in attempting to go through, and when about half way through, struck and sank. By reason of this stranding, her timbers and sides were broken, and she was badly twisted and strained. The libelant claims that he was delayed about three qtiarters of an hour by reason of the negligence of the defendant in failing toi open the draw, and that, while there would have been an abundance of water if the draw had been seasonably opened, the tide ohad so fallen while he was kept waiting that, when he got up into the draw, it was> impossible to pass through. The defendant denies that it was negligent, and claims that the libelant was not delayed; that the Hebe did not reach the drawbridge until the tide was so low that she could not have passed through; that the libelant was incapable and reckless and “intoxicated or rattled,” and so steered the barge improperly; and was negligent in not laying his vessel on the mud flats, instead of trying to pass through; that the defendant was not bound to open the draw; and that it would hare been better for libelant and the public travel if defendant had not opened it. The defendant further shows that neither the libelant nor his engineer was properly licensed. The question as to the obligation of the defendant to operate said draw, and its liability for negligence, will be discussed later.
The next question is, was the libelant negligent? The only charges of negligence supported by evidence are in not laying the barge on the flats, and in navigating her in the draw. The preponderance of testimony as to the fall in the tide when the barge struck, together with the other evidence as to the time of high water, shows that the barge could have gone through the draw S she had not been delayed. Guyer, one of defendant’s witnesses, thinks it took half an hour to open the draw. Kemper, another of defendant’s witnesses, says the tide appeared to have fallen six inches or more when the barge struck. Even the absent draw tender, who swore there was not water enough to go through, admits that the average tide under the draw rises and falls about six feet, and that when you can get over the shoal ground below, and to the bridge, you can get through. It is claimed that when libelant found the tide had begun to fall, and the bridge was not opened, he should have backed out and lain on the flats for another tide, as he had done on a former occasion. The libelant claims that he thought he could get through, even then; that he could have done so if he had had an inch more water; that he had been within 75 feet of the draw for 20 minutes before the tide began to fall; and that he could neither turn around nor back out with safety. In this statement he is supported by the testimony of several witnesses. Guyer testified that, although it was all soft bottom below a certain dock, which extends about 250 feet below the drawbridge, yet that a boat which lay on the bottom anywhere between said dock and said Taylor’s wharf would be in a dangerous condition. He also stated that there would be a great deal of difficulty in laying a canal boat, all the way up the river, as, if it gets on a stone, the stone will go through it. Other witnesses explain that.
The other claim of negligence is in steering the vessel in the draw. It is agreed that the proper course is straight through the center of the draw. It is further agreed that, after the barge had struck, she lay across the draw in a diagonal position. The libel-ant claimed that this swinging was caused by the Hebe striking her port bilge, owing to the catching of her wheel in the mud when in the best water in the draw, and that, as her engines were reversed, her bow shifted over to starboard. In this claim he is supported by Buckley, one of defendant’s witnesses, who had been in the coasting business for 30 years, and who testified that the barge "looked as though she might have caught her stem on the west side, and her bow . swung around against the pier.” And Mr. Wheeler, the selectman, who was on the bridge when the barge grounded, testifies that she entered the bridge about in the center of the channel, and that, in his judgment, the boat was steered so, or rather went so, that she struck the abutment, but that he did not know what part of the barge first struck; she might have struck first amidships, or on her port quarter. The defendant claims that the libelant turned the bow of the barge to starboard too soon, and caused her to bring up on the foundation stones of the abutment. The evidence upon thé hearing to this effect was largely based upon conjecture. But, after the hearing, the deposition was taken of one Gokey, the shipwright who repaired the Hebe after the accident. He stated that all the damage was on- the port side, and that it appeared from the broken planking and splintered and slivered floor timbers that she had grounded or stranded on that side, and that her starboard side was down, making a twist, and that there was no chafe on the starboard side. This testimony, if true, should outweigh the other testimony, for it would be impossible to say, from the movements of the boat, just as she struck, or from her position after she stranded, which of the conflicting claims was correct. I am therefore disposed to accept this testimony, which directly confirms the theory of Capt. Buckley, the witness for the town, whose testimony has already been referred to, and also supports the claim of libelant. There is no evidence that the libelant ported his wheel, so as to throw the bow to starboard. For these reasons, I am of the opinion that the evidence shows that the libelant did not contribute by his negligence to cause the disaster.
Furthermore, while there is no evidence to justify the charge that the libelant was drunk, yet if, as is claimed, he was rattled, and for that reason did not use as good judgment as he might otherwise have used, this is not a defense which ought to avail the defendant in this case. It is well settled that if a plaintiff acts erroneously, through excitement induced by defendant’s negligence, or adopts a perilous alternative in the endeavor to avoid an injury threatened by such negligence, he is not guilty of contributory negligence, as a matter of law. “And even though the injured person might have escaped the injury so brought upon him but for his hasty and mis
Assuming the correctness of the conclusions of fact already stated, there remains for consideration the effect of the failure of the libel-ant to obtain for himself a license as pilot, or to have some other person, so licensed, on board of said barge. “The mere omission of any or all of the safeguards provided by the federal and state legislatures and the boards authorized to ordain and make laws upon the subject, and a disregard of the laws of the sea, or of the waters upon which the vessel may be, do not, per se, place a vessel thus derelict out of the protection of the law and at the mercy of a wrongdoer, and necessarily leave her remediless for injuries sustained while; thus inattentive to laws enacted to secure greater safety in the navigation on' the high seas and navigable rivers. The most that can be claimed is that a noncompliance with legal regulations may authorize a presumption, in the absence of evidence, that a collision may have resulted from other causes; that it was attributable to said noncompliance and the absence of the statutory precautions. If there is evidence tending to prove that a collision, and consequent injury, were caused solely by other means, or the negligence or wrongful acts of others, it becomes a question of fact, and the circumstance that the injured vessels were not manned, or did not carry the lights or take the course prescribed by law for vessels in' the same situation, is to be considered as one of the circumstances to be taken into ■ consideration in determining the liability of the5
“But it would be against ail reason to contend that the master or owners of a vessel should be made liable for the consequences of an .accident by reason of not having a special lookout, where the collision or loss could not have been guarded against by a lookout, or where it is clear that the absence of a lookout had nothing to do in causing it. * * * We are not to shut our eyes and to accept blindly an artificial rule which -is to determine, in all cases, whether the navigator is liable to 'the charge .of negli*568 gence in. cansing any loss or damage that may happen. A lookout is only one of the many precautions which a prudent navigator ought to provide, but it is not indispensable where, from the circumstances of the case, a lookout could not possibly be of any service. ⅜ * * It is perfectly evident that the absence of a special lookout had nothing at all to do with the happening of the accident, and therefore it can have nothing to do with fixing the liability of the parties.”
The question now presented is whether the town of Westport, being under a statutory obligation to maintain this highway and bridge over a navigable stream, but under no obligation to operate said drawbridge, having voluntarily operated it for 10 years, and, on the day of this accident, the bridge tender being absent, having undertaken, through its first selectman and others, to operate said draw, and having been negligent therein, is liable to this libelant for damages suffered by reason of such negligence. One branch of the question involved was raised and discussed upon exceptions to the jurisdiction, and was decided adversely to the defendant. 53 Fed. 824. But the forcible and ingenious argument of counsel, after hearing on the merits, has seemed to call for a consideration of the whole question in the light of the facts developed at the trial. The argument of the senior counsel for defendant asserts, and proceeds upon the assumption, that the breach of duty complained of consists in an omission or neglect to perform the public duty of opening a draw, and that this duty could only result from the duty imposed by the General Statutes of Connecticut upon the town of Westport to maintain in proper condition .the highways and bridges of the state within that town, and that the defendant town cannot thus be held liable for such negligence in the absence of a statutory provision to that effect. The libel merely alleged that said drawbridge was part of a public highway crossing public navigable waters of the United States, and as such was in the care, control, and management of the defendant. The breach of the duty complained of was the negligent failure of the town to open said draw, or negligence in its control and operation. It was not claimed that there was any public duty or obligation to operate said draw arising from any general statute or other legislative act. On the contrary, the counsel for defendant who tried the cause proved upon the trial, and claimed in his argument and brief, that the defendant town in 1857 voluntarily assumed the obligations of a charter granted in 1796 to a turnpike company, ■ that neither said company nor said town was ever under any obligation, by legislative act or otherwise, to operate said draw, and that, down to 1880, said draw had always been operated by the persons passing through it in vessels, but that in 1880 the town voluntarily employed a draw tender to operate it. There is no statute requiring towns to open or close drawbridges, or to provide draw tenders therefor, and it is admitted that, where a draw tender is required, such requirement is uniformly provided for by charter. Inasmuch, therefore, as there is an express statutory obligation resting upon towns to maintain highways for public travel, .and none in reference to the operation of drawbridges, the legal position of the town in reference to the two matters is necessarily radically different. It is well settled that the liability of a municipal
In view of the further claim of the defendant that, if no statutory obligation was imposed upon the defendant to operate said draw, it cannot be liable for negligence, because it was without legal power to maintain or manage it, it becomes important to consider the powers of the town, the character of the acts undertaken by it, and the rules of law applicable thereto. It will not be denied that the duty of operating the draw is one which might have been imposed upon the town by the legislature, just as the duty of building drawbridges across navigable streams has been imposed by the act of 1880. Escanaba, etc., Co. v. City of Chicago, 107 U. S. 678, 2 Sup. Ct. 185; Miller v. Mayor, 109 U. S. 385, 3 Sup. Ct. 228; Weisenberg v. Town of Winneconne, 56 Wis. 667, 14 N. W. 871. A town has the power to acquire and hold all such property as may be reasonably necessary for those purposes of municipal government for which it exists. Dill. Mun. Corp. § 562, p. 657; White v. Stamford, 37 Conn. 578. And “towns may make such regulations for their welfare, not concerning matters of a criminal nature, nor repugnant to the laws of the state, as they may deem expedient:” Gen. St. 1888, p. 31. Under such authority, the town of West-port acquired said bridge and draw, and at its town meetings, and through its selectmen, provided for the appointment of a draw tender and the management of said draw. Towns are required to build and maintain all necessary highways and bridges within their limits. The town, having assumed the construction and maintenance of a bridge at this point, will not now be allowed to claim that it is not required to maintain it. Village of Marseilles v. Howland, 124 Ill. 517, 16 N. E. 883; Requa v. City of Rochester, 45 N. Y. 129. As already seen, under the statute of 1873 it was further enacted
Tested by these criteria, it does not seem that the voluntary action of this town in opening and closing this draw, in the absence of general or special legislation for the protection of the bridge itself, or for the convenience of navigators and the benefit of the wharves above the bridge, or to provide for the convenience and safety of those persons having occasion to travel across the bridge, and to avoid unnecessary obstructions to the highway, can be considered, in any sense, a public governmental act. Maxmilian v. Mayor, 62 N. Y. 160. Furthermore, even if the town, acting under the authority of the state, might have obstructed navigation at this bridge, congress might at any time interfere to remove such obstruction. Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811; South Carolina v. Georgia, 98 U. S. 4. And it may fairly be assumed that the town has undertaken thus to operate said draw for its own welfare and in order to avoid the effects of such interference by congress, and has, therefore, impliedly contracted with those having occasion to pass through said draw that it will seasonably operate the same, provided no such congressional legislation is sought. Edgerton v. Mayor, supra. “'Private or corporate powers are those which the city is authorized to execute for its own emolument, and from which
An examination of these cases will show that they conclusively establish liability in a case like the present.
From these considerations, I am led to conclude that the defendant town, having acquired the property of the private corporation, and, in addition to the duties exercised by it, having without any statutory or other obligation, voluntarily assumed and undertaken, under its general powers, since 1880, to open and close the draw for purposes which, under the circumstances, may be assumed to have been, or which do not appear not to have been, for its own benefit or the benefit of its property, and having recognized the right of commerce, to have said draw so operated, and having either impliedly contracted with the public to operate it, or having, at least, invited the public to believe that it had recognized such right, cannot withdraw from said undertaking without seasonable notice; and that it is under the same obligations in reference to the performance of said undertaking, and is liable to the same extent for negligence therein, as a private person or corporation engaged in a similar undertaking for a purely private purpose. Here the damage was the direct result of the negligence of the town in the ministerial execution of an undertaking which it had assumed and attempted to perform. It seems to me, further, that these conclusions are supported by the cases cited in Connecticut and Massachusetts. Thus, in Mootry v. Danbury, 45 Conn. 550, the town, being bound to maintain a bridge across a stream of water on a highway, so constructed it that there was not sufficient space to allow the water to pass off freely, and thereby caused it to set back on the land of the plaintiffs. The court, in its opinion, having cited from and approved the dissenting opinion of Chief Justice Butler, in Judge v. Meriden, 38 Conn. 90, said:
“It seems that that learned jurist had no doubt that towns were liable for the consequences of an improper construction of a highway. We discover nothing in the opinion of the court which is inconsistent with that view.*574 Tlie chief justice and the other members'of the court differed only in the construction of the record. But the case of-Danbury & N. B. Oo. v. Town ot Norwalk, 37 Conn. 109, is more directly in point. The only difference between that case and this is that that was a petition in chancery to restrain the town from committing the wrong, and this is an action at law to recover damages for the wrong committed. The principle applicable to the two cases is the 'same. ' The injunction was granted only because the contemplated action of the town was an invasion of the legal rights of the railroad company. If that was so in that case, it is in this; and, if the defendants have invaded the legal rights of the plaintiffs, they are responsible. The conclusion is inevitable. The reasoning of the court assumes that a town would be liable in a case like this. In speaking of the power and duty of towns in respect to highways, the court says (page 119): ‘The authority is clear and the duty imperative; always subject, however, to the salutary qualification, interposed for the protection of others, that this authority shall be so exercised, and this duty discharged in such a manner, as to occasion no wanton injury to the property or rights of other persons, natural or artificial.’ This is sound law, and is abundantly sustained by the authorities cited. It seems to us impossible to hold that this town is exempt without overruling that case. We regard the principle there enunciated as sound, and in harmony with decided cases elsewhere.”
In Danbury & N. R. Co. v. Town of Norwalk the town had undertaken to construct a drain which was to discharge water into a cut, to the injury of the property of the railroad company. The court there said:
“The question whether such a corporation as the respondent, in consequence of any immunity inherent in its municipal character, isi exempt from those liabilities, for malfeasance for which individuals and private corporations would be liable in a civil action by the party injured, is no longer an open one. The acts of the character of those now in question involved in the necessary performance of a duty prescribed by a municipal ordinance are strictly ministerial, and, when performed by an officer or agent by direction and for the benefit of the corporation, no exemption from liability by the principal can be interposed when from negligence or willfulness they are so performed as to produce unnecessary damage to other parties. Perry v. City of Worcester, 6 Gray, 544; Sprague v. City of Worcester, 13 Gray, 193; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 464; Mayor v. Bailey, 2 Denio, 433; Mayor v. Furze, 3 Hill, 612; McCombs v. Town Council, 15 Ohio, 476.”
In Carson v. City of Hartford, 48 Conn. 90, in Morse v. Fair Haven East, Id. 222, in Healey v. New Haven, 47 Conn. 305, and in Bronson v. Borough of Wallingford, 54 Conn. 520, 9.Atl. 393, the court cites and approves Mootry v. Danbury, supra. In the latter case, where there was no accusation of negligence, but merely of an intent to change the grade of a highway, the court distinguishes between the facts therein and the case of Mootry v. Danbury, and says:
“It is only in special cases, where wanton or unnecessary damage is done, or where damage results from negligence, that they [towns] can be held responsible.”
And in Healey v. New Haven, supra, the court says:
“The town or city, as the case may be, is practically the owner of the land for all the purposes of a highway. So long as it is used strictly for those purposes, with due regard for the rights of others, no liability attaches. If, however, the work is improperly or negligently done, thereby causing damage to others, the corporation, like an individual, is liable. Mootry v. Danbury, 45 Conn. 550.
“Tlie distinction between the two- classes of cases is clear. In the one class the municipality has interfered by giving directions, or taking charge of the work by its own agents, as in Woodcock v. Calais, 66 Me. 234. In the other class, the municipality has not interfered, ‘but has left the work to ho performed by the proper public officers, in the methods provided by the general laws.’ ”
But the defendant contends that in this case the question of liability must he determined by the law of Connecticut, and that what the law of Connecticut is appears from the cases cited by him, and from the case of French v. Boston, 129 Mass. 592. The libelant contends that this is a question of general common law or commercial law, a,nd that, if there is any conflict between the law of Connecticut and the general law, this court should he governed by the general rules of law, and especially by the decisions of the federal courts. He further contends that, upon this question of damages arising from a maritime tort, it is the duty of a court of admiralty to administer relief according to its own procedure and rules, and to enforce its rules of liability so as to do justice. As already stated, it does not seem that there is any conflict, under the facts in this case, between the decisions of Connecticut and the general rules of law.
As has been already shown, it is settled by the repeated adjudications of the supreme court of the United States that the rule of liability established in Massachusetts is not in harmony with the general rule in this country, nor with the decisions of the federal courts. In this connection it seems desirable to examine the decisions of the supreme court of the United States upou the distinction between
“Tlio decisions of the state courts certainly cannot be allowed any greater weight in the federal courts when exercising the admiralty and mariüme jurisdiction exclusively vested in them by the constitution of the United States.”
The admiralty and maritime jurisdiction is conferred on the courts of the United States, and state laws cannot enlarge or restrict said jurisdiction, but the admiralty courts have jurisdiction to enforce admiralty rights according to their own procedure. Upon such questions the decisions of the highest court of the state do not relieve the admiralty court from the duty of exercising its own judgment. The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498; The Lottawanna, 21 Wall., at page 580; The Guiding Star, 18 Fed. 263. In Steamboat Co. v. Chase, 16 Wall., at page 531, where an áction had been brought under a state statute in the state court, by an administrator for damages for injuries by a collision, resulting in death, Justice Clifford said:
“If the Injured party had survived, no doubt is entertained that he might have sought redress for his injuries in the propel* admiralty court, wholly irrespective of the state statute enacting the remedy there given, and prescribing the form of action and ihe measure of damages, as the wrongful act was committed on navigable waters within the admiralty and maritime jurisdiction conferred upon such courts hy the constitution and the laws of congress.”
The general rule of the federal courts on this question is enforced in admiralty. The Titan, 23 Fed. 413; Holt, Con. Jur. 208. The various decisions of the federal courts hereinbefore cited, and the reasons leading to the conclusions therein, seem to show that, where a question of maritime right is presented to an admiralty court, that court, at least in the absence of legislation establishing a contrary rule, may enforce said rigli t, and provide remedies for its violation in accordance with the rules of admiralty. In City of Boston v. Crowley, 38 Fed. 202, Judge Colt, affirming the decree of the district court in admiralty, in a case almost precisely like the one at bar, held the city of Boston liable, and examined therein the cases hearing upon the questions raised in this case. He held that the question involved was one “of general municipal or commercial law, and, as such, this court should follow the decisions of the supreme court of the United States.” In Edgerton v. Mayor, 27 Fed. 230, Judge Brown, upon a careful consideration of the same question, held the city of New York liable for negligence in operating a draw in a bridge across the Harlem river. He held, citing several cases, that, hy undertaking to manage the draw, the state and city had recognized the right of
It is finally to be borne in mind that, in actions for torts arising from negligence, courts of admiralty have not circumscribed themselves within the positive boundaries of mere municipal law, but have proceeded, in regard to questions of damages, upon enlarged principles of equity and justice. Thus, in cases of mutual fault the damages may be divided. And this amelioration of the common-law rule is no longer limited to cases of collision, but is applicable to all cases of marine torts founded upon negligence and prosecuted in admiralty. The Max Morris, 137 U. S. 1, 11 Sup. Ct. 29. When a party elects to bring his suit in the admiralty court, he is bound by the rules and course of proceedings, and is entitled to the remedies, applied in that forum, including its rules for estimating damages. Atlee v. Packet Co., 21 Wall. 389; The Max Morris, supra. If a court of admiralty can thus enforce its rules of damages so as to authorize a recovery when justice requires it, although no such right of • recovery exists at common law, I see no reason why it should not enforce its rule of liability in accordance with enlarged principles of justice in a case like the present.
In view of the foregoing considerations, it seems to me that the, town is liable. The libel may be amended in conformity with the facts herein found. Let the case be referred to a commissioner to find the damages and report, in accordance with the ordinary rules in such cases.