142 Me. 327 | Me. | 1947
This is an action to recover damages to the
It fairly appears that on the morning of June 18, 1940 the tug “Seguin” left Bath for Augusta, having in tow the barge “Bast.” The tug was on the starboard quarter of the barge, and fastened to the barge by tow line, backing line, and breast lines. The breadth of the “Seguin” was about 20 feet and its length 80 feet. The registered breadth of the “Bast” was 35.6 feet and its length 170 feet. The barge was loaded with about 650 tons of soft coal.
The vessels thus tied together, proceeded northerly up the Kennebec river to the channel on the easterly side of Swan Island. The Richmond-Dresden Bridge, built by the State and crossing the Kennebec, is situated near to and northerly of Swan Island. At this point in the River, where the waters of the channel on the westerly side of Swan Island join the waters on the easterly side, the current is often unsteady,, with a possible tendency towards the easterly side of the river, and described as a “tricky” or “witch current.” At the time, it was flood tide, the wind was “fresh southwest,” and the current was running up the river at a rate of about one and one half miles per hour. The vessels were going slowly, and were being steered in a manner to “line up the draw.” The captain of the tug was at the wheel, and because the bow of the barge obstructed his view of the channel, the mate was stationed at the bow. to signal the course.
It appears that in the repair or reconstruction of the pier east of the draw channel, in 1938, the abutment or underwater portion of the pier was increased in size about three feet by putting concrete around it, and around this concrete some steel sheeting projected an additional five inches. The top of this repair work was at low water level. Also, six or eight inches below the top of the steel sheeting was an eight by eight oak timber, or “waling,” fastened horizontally on the sides of the abutment. The sheeting and waling were used during reconstruction but were not entirely removed. This underwater projection, with the sheeting and waling, which extended about four feet into the draw channel, could not be seen when the water was above the low tide level. At the time of this accident the water was at about half tide.
The tug and barge proceeded slowly, and, as claimed by the plaintiff, only fast enough to maintain their course. They were passing so near to the westerly or draw pier, that the barge struck the corner of the plank apron of the westerly pier, placed
EXCEPTIONS
The presiding Justice, in his charge, said to the jury:
“If the State was responsible for this, how much did it damage this plaintiff? It is not for me to say. It is for you. I say this to make myself clear to you. The evidence as I remember it, is that damage was $7,200. If it is different from that — if there is other evidence to show it was more or less — it is whatever the evidence shows. But my memory is — and don’t depend upon my memory — my memory is one gentleman said — the owner of the tug or someone else— that the amount of the damage was $7,200. Frankly — and if I am wrong, I know one of the gentlemen will correct me —frankly, I believe if you come to damage, you should make the damage $7,200; but it is your province, I myself, remember no contradictory evidence.”
At the conclusion of the charge, and before the jury went out, the Attorney General stated:
“The defendant takes exception to the statement of the Presiding Justice to the jury when he says if they find damages for the plaintiff it would be $7,200.”
“Did I say that? I want to qualify it. Disregard what I said. It is not for me to say what damages are. I thought I was shortening some of your work, but I have no right when objected to. It is for you to find damages from evidence presented here — if you get to damages. You are to find it from all the evidence and from inferences and exhibits; and I tell you distinctly as far as the Court is concerned, the damages are not $7,200 nor 72 cents — it is not the Court’s business. Perhaps I should not have invaded your province. I repeat and will exaggerate so there will be no misunderstanding. It is for you to say what the damages are from all this evidence.”
No exception was taken to the corrected instruction.
Evidence of value of the tug before and after the accident came in part from a vice-president and treasurer of the plaintiff company, who placed the total damage at $7,200. The members of the jury were of course not obliged to accept this amount, and the Court plainly so stated. They were at liberty to consider the evidence of all facts and circumstances in the light of their knowledge and experience. Damages cannot always be reduced to mathematical computation. There are no rules that furnish an absolute guide for the discretion of a jury. Savoy v. McLeod, 111 Me., 234, 238, 88 A., 721, 48 L. R. A. (N. S.), 971. If they did not believe a witness they could disregard his testimony.'It was for the jury to determine what damage, if any, was the natural, reasonable and direct result of any unlawful act. As stated in the corrected instruction, if any liability, the jury should “say what the damages are from all this evidence.” Collins v. Kelley, 133 Me., 410, 170 A., 65; Moore v. Daggett, 129 Me., 488, 150 A., 538; Topsham v. Lisbon, 65 Me., 449.
The presiding Justice had a right, during the trial, and before the case was committed to the jury, as well as a duty, to correct
MOTION
By the terms of a Resolve, the Legislature gave permission to the plaintiff Towage Company to bring an action at law against the State, in the Superior Court for Kennebec County, according to the “practice,” “proceedings” and “liabilities” as in cases “between individuals.” Resolves of Maine for 1945, Chapter 12.
In this action for alleged negligence, therefore, it was the duty of the plaintiff company to prove to a jury by a fair preponderance of evidence that the defendant State was negligent, that as a result of this negligence the company suffered damage to its property, and that no negligence on its part contributed to the injury. Blumenthal v. B. & M. R. R., 97 Me., 255, 54 A., 747; Edwards v. Express Company, 128 Me., 470, 148 A., 679; Baker v. Transportation Company, 140 Me., 190, 36 A., 2d, 6; Adams v. Richardson, 134 Me., 109, 182 A., 11; Lesan v. M. C. R. R. Co., 77 Me., 85. The standard of measure
This “due,” “ordinary” or “reasonable” care and caution, that the law requires, is the care that reasonable and prudent men use in respect to their own affairs under' like circumstances. Raymond v. Railroad Co., 100 Me., 529, 62 A., 602, 3 L. R. A. (N. S.), 94. As a practical proposition this “ideal” man of ordinary foresight and prudence is usually a composite picture drawn from the combined ideas, knowledge, feelings, and experiences of the members of a jury, which picture may exonerate from blame, or fix a liability. Negligence, therefore, is the failure, in the opinion of a jury, to act as would the usual and prudent man of ordinary intelligence.
Under its motion for a new trial the State must show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact. Eaton v. Marcelle, 139 Me., 256, 29 A., 2d, 162; McCully v. Bessey, 142 Me., —; 49 Atl. (2d), 230; Marr v. Hicks, 136 Me., 33, 1 A., 2d, 271.
The law recognizes that to leave a concealed and unprotected underwater obstruction in a navigable channel may be negligence. Navigable rivers are common highways which persons have a right to use as they use other highways. While a bridge itself may obstruct free use, the legislature, with consent of the Federal Government, may authorize construction of a bridge over navigable tidal waters upon conditions, such as proper draw channels, and the like. State v. Freeport, 43 Me., 198; Commonwealth v. Charlestown, 1 Pick. (Mass.), 180; 11 Am. Dec., 161; The Nonpareil, 149 Fed., 521; The Philadelphia R. R. Co. v. Towboat Co., 64 U. S. (23 How.) 209; 16 L. Ed., 433; Tuell v. Inhabitants of Marion, 110 Me., 460, 86 A., 980,
In this case the record shows that the legislature of Maine authorized, by Chapter 188 of the Private and Special Laws of 1929, the construction of this bridge across the Kennebec river, with a draw to be satisfactory to the War Department. It also shows that the War Department approved plans for construction and for repairs of the bridge with not less than 69 foot draw channel, on condition that “free navigation of the waterway shall not be unreasonably interfered with; that the present navigable depths shall not be impaired; and that the channel or channels through the structure shall be promptly cleared of all falsework, piling, or other obstruction placed therein or caused by the reconstruction of the bridge.”
The defendant State of Maine, through its Attorney General, contends that the damage to the Seguin was not caused by the unseen obstruction, but was caused by the negligence of the master of the tug, who, carelessly, or through bad judgment or lack of skill, steered too far westerly, and struck the apron or fender of the draw pier, with great force, which “threw” or “bounced” the vessels to the right against the dolphin, and thus, breaking the piling, permitted the tug to hit the underwater projection on the abutment. In other words, the State says that whether there was an underwater obstruction extending four feet into the channel, or no obstruction, is immaterial. It claims that the evidence shows that the damage resulted through a series of events beginning with the plaintiff’s negligence in hitting the crib or apron of the draw pier in a severe and careless manner.
The Plaintiff company, alleges and claims that leaving a concealed, unauthorized, and unprotected obstruction in the draw channel was negligence, and the sole reason for the damage. The plaintiff further says there was no negligence on its part that either caused or contributed to the injury; that
The towing of vessels in a navigable river is a well known and distinctive business, and due care must of course be at all times exercised by the master, or directing agents, of a tugboat. The negligence of a master that brings about a collision, or contributes to an injury, will prevent the recovery of damages by the owners. The highest degree of skill and care are not required. The master of a tugboat is required to exercise “reasonable care, caution and maritime skill.” Berry v. Ross, 94 Me., 270, 47 A., 512; Cumberland County v. Tow Boat Co., 90 Me., 37 A., 867, 60 Am. St. Rep., 246; The Nonpareil, 149 Fed. (D. C.) 521; Steiner v. Mississippi River Co., 194 Ia., 647, 190 N. W., 9, 25 A. L. R., 1551, and note.
No exceptions were taken to the portions of the Charge relating to duties and rules of care and it must be assumed that the jury were properly instructed. Frye v. Kenney, 136 Me., 112, 3 A., 2d, 433; Eaton v. Marcelle, 139 Me., 256, 29 A., 2d, 162.
The plaintiff's tugboat was to pass with barge in tow through the draw bridge channel. There was an unseen obstruction in the channel. The barge struck the protective apron of the westerly pier and swerved across to hit the dolphin and the submerged obstruction. Was there negligence on the part of the State? Were the servants of the plaintiff company at fault? If known to the company agents could the obstruction have been avoided by the exercise of due care? What was the real 'or proximate cause of the damages received? Did the negligence of the tugboat captain, if there were negligent acts on his part, contribute to the injury to the boat? If the damage was done-through the fault of the State, what was the amount of damage? These and similar questions were answered, by the jury verdict.
Exceptions overruled.
Motion overruled.