57 Fla. 101 | Fla. | 1909
W. G. Yarbrough .sued the Louisville & Nashville (Railroad Company in the Circuit Court of Jackson County. The following is the declaration and bill of particulars, the latter being made a part of the former:
“Now comes the plaintiff in the above styled and entitled cause, and sues the defendant, Louisville & Nashville Railroad Company, which has been duly summoned herein, and for cause of action says:
1st. For that whereas, heretofore, to-wit: — On the 27th day of February, 1908, the plaintiff was the owner ahd in possession of a certain raft of pine timber, which at said time, was rafted and lying in the waters of the Apalachicola River at and near bridge of the defendant company across said river; and while said raft was so lying at o.r near such bridge in the river aforesaid the said defendant, by, and through its servants, agents and employees, entered upon said raft, and over and against the protest of the plantiff, cut the binders of said raft
Wherefore, plaintiff sues and alleges his damages by reason of the premises in the sum of Seven Hundred and Fifty ($750.00) Dollars.
2nd. — Plaintiff further sues the defendants, for that whereas, heretofore, to-wit — , on the 27th day of February, 1908, plaintiff was the owner and in possession of a certain raft of pine timber which was then and there, in the waters of the Apalachicola River; that while floating said raft of timber down said river the rear block of the said raft became fastened to a certain plank enclosure-enclosing and surrounding one of the piers of the bridge, belonging to the defendant company; that plaintiff was, using all reasonable means in his power to remove said logs and unfasten the same, but that while plaintiff was so endeavoring to unfasten said logs so ffliat he might proceed to market therewith, the said defendant, without reasonable cause or grounds therefor came upon said logs by its agents, servants or employees and over the protest of plaintiff proceeded to cut the binders which held said logs together, and also the ropes attached to said raft, and turned said timber loose; that by reason of the actions of the defendant, as aforesaid, said raft became broken up and the logs thereof drifted away, and
Wherefore, the plaintiff sues and alleges his damages, by reason of the premises, in the sum of Seven Hundred and Fifty Dollars.
Bill of Particulars hereto attached, marked Exhibit ‘‘A’ and asked to be taken and considered a part of this declaration.
And plaintiff claims damages in the sum of Seven Hundred Fifty ($750.00) Dollars.'
Will H. Price,
3-26-’o8. Attorney for the Plaintiff.
BILL OF PARTICULARS.
Louisville & Nashville Railroad Company,'
I11 Acct. With,
W. G. Yarbrough—
To 64 pine logs, 400 feet average each.....$500.00
To money and labor expended in. recovering a portion of the original logs.......... 50.00
Total........................v$55o.oo
A plea of not guilty was filed, and on the trial the plaintiff recovered a judgment for $473.30 damages, and
The facts we deem it necessary to refer to briefly stated are about as follows: Sometime in February, 1908, the plaintiff hired a man named Sheppard Royals to drive a raft of logs belonging to the former down the Apalachicola (Chattahoochee) River to Apalachicola, past the point where the railroad bridge of the defendant spans the river. There were ninety logs in the raft, fastened together in sections. In the first section there were twenty pine logs; in the second twenty-one; in the third eighteen; in the 'fourth nineteen, and the balance were put into what the witnesses call a spantail, in the center of the raft. These sections were fastened together by couplings and binders. There was also a rope running from the bow to the stern to aid in holding the raft together. The raft was started down the river about two o’clock in the afternoon. The river was high, and between eight and ten o’clock at night it reached the bridge of the defendant corporation. The river is a navigable stream, and there is a drawbridge to permit the passage of steamboats. On either side of the pier on which the draw rests there is a navigable channel sufficiently wide to easily permit the passage of boats and rafts. In going under the drawbridge the driver of the raft Sheppard Royals so managed that the rear end of the raft struck against the fender which protected the pier and forced by the current doubled around the pier and thus the raft was hung up against the fender of the bridge where it remained all night. Early the next morning it was dis-' covered by the agent of the railroad in charge of the bridge. Sheppard Royals had two men to assist him in driving t'he raft, but after it lodged against the fender of the pier one of them quit work entirely, as it was cold, and the other does not seem to have been efficient. It
It is held in this State that a raft should be navigated with ordinary care, diligence and skill so as to prevent injury to the rights of others. It is also settled that the floatage of logs must be with due and reasonable regard to the rights of a bridge owner. Bucki v. Cone, 25 Fla. 1, 6 South. Rep. 160; Sullivan v. Jernigan, 21 Fla. 264. The right to run logs in navigable waters must be exercised with due and reasonable care and diligence and due regard to the rights of others, and to the general usages and customs of navigation and commerce. 1 Farnham on Waters and Water Courses, pp. 158, 159.
It was decided in the case of Pensacola & A. R. Co. v. Hyer, 32 Fla. 539, 14 South. Rep. 381, that a railroad is not required to keep the open space under its drawbridges over a navigable stream free from obstructions to navigation when such obstructions are present without fault on the part of the railroad. We are of opinion, however, that it is the duty of a railroad company to prevent the accumulation of wreckage or drift around the piers of its bridges which would interfere with navigation. St. Louis, I. M. & S. Ry. v. Meese, 44 Ark. 414.
Something more than an ordinary obstruction of navigation is involved in this case. The raft being lodged against the fender of the pier of the drawbridge, the water being high, and likely to cause a jam of drift, thereby endangering the bridge itself, was a menace to the defendant’s property, and a nuisance, which the defendant had the right to remove for its own protection and the protection of the lives and property of those who had occasion to use the railroad. In removing the raft it was its duty to use ordinary care to do no unnecessary injury to the owner of the raft. Mark v. Hudson River Bridge Co., 103 N. Y. 28, 8 N. E. Rep. 243; Beach v.
One of the assignments of error is based on the following part of the judge’s charge to the jury: “A duty would also devolve upon the railroad company owning the bridge, in the first instance, to wait a reasonable time for the owner of the raft or his agents, to remove the raft, and after the time expired, to use, that is the bridge owner, to use all proper and necessary efforts to remove the raft without breaking it up or cutting it. If it proved impossible to remove it from the position it occupied, without breaking it, or cutting it, then the railroad company or owner of the bridge, would have the right to cut the raft in such manner as to injure it as little as possible under the circumstances, and to expose it to as little risk or loss as possible under the circumstances, and there would also be a duty upon the bridge owner, before thejr so broke up or cut the raft, to' notify the owner or agents of their intention so to do, and allow him reasonable time and opportunity to prepare to take care of the raft after it was cut loose, and it would Ixe the corresponding duty of the raft owner, through his agents, to take prompt and effective measures to protect the property after it was turned loose by th° owner of the bridge, and there would be no special duty on the owner of the bridge to look out for the property after it was cut loose, provided the manner and.time of cutting loose the raft and the means by which it was effected, was such as an ordinarily prudent and cautious person would have used under the circumstances.”
If this had been a case simply of an obstruction of a navigable stream, the charge would perhaps have been unobjectionable. But we are of opinion that the real
The raft struck the fender of the bridge about nine o’clock at night and became wrapped around the fender where it seems to have been held tight by the current. It was not cut loose until after three o’clock in the afternoon of the next day. The plaintiff’s agent should have recognized the gravity of the situation and have exerted himself to procure aid and facilities for relieving it. He seems to- have practically done nothing. He had the whole morning and until three o’clock'in the afternoon to notify his principal and secure aid and facilities. He offers no explanation why he did not adopt and carry out with energy some plan which could have made it unnecessary for the defendant’s agents to cut up the raft. Under the circumstances we do not see why the owner or his agent should have had any other notice than they had
There are several assignments based on rulings of the court in refusing to allow the defendant to propound questions to witnesses in regard to complaints made by the Captain of the Steamer Callahan of the obstruction to navigation by the lodgment of the raft against the fender of the pier. We do hot think the court erred. The Steamer actually passed up the river and the testimony if elicited would have been hearsay. Moreover it was actually proven by one of the witnesses that the officers of the boat complained of the obstruction.
We deem it proper to remark in order to prevent any misunderstanding that no question is presented to us by the pleadings or argument of the applicability to the facts of this case of section 3149 of the General Statutes of 1906. If that section does not apply then the doctrine of contributory negligence on the part of the plaintiff, as announced in the case of Louisville & Nashville R. Co. v. Yniestra, 21 Fla. 700, and other decisions of this court might be applicable. If the section does not apply the facts of the case as shown in the testimony would, at the least, in our opinion, require a proper apportionment of the damages between the plaintiff and defendant.
The judgment of the Circuit Court is reversed.