201 F. 135 | D. Mass. | 1911
In an opinion filed December 1, 1910 (201 Fed. 131), overruling exceptions to the libel filed by the county of Bristol and its commissioners, the nature of this case has been stated and its history reviewed up to that point. Since the exceptions were overruled as above, there have been two amendments to the libel, on January 10 and January 30, 1911, neither requiring special notice here. On April 15, 1911, the Staples Coal Company filed exceptions to the answers which had been filed to its petition, on June 11, 1910, by the county of Bristol and by Messrs.-Bryant, Chase, and Warner, county commissioners. The case has also been heard on the merits, ydthout requiring the court first to make an express decision on the sufficiency of the answers, where attacked by the exceptions.
There are 12 exceptions to each answer. The first objects that the third article of each denies the facts and circumstances of the collision to be correctly stated in the petition ‘"as to some particulars,” without specifying the particulars. Of course, some specification was necessary. But the answers elsewhere purport to give the respondents’ own account of the facts and circumstances, particularly in the articles numbered 8. Although the answers nowhere so state, I think I may take them as meaning to deny the correctness of the statement
The twelfth exception objects to denials in the seventh article of each answer that the county accepted and undertook the control of the bridge, or employed and paid those who opened or controlled it, “in such legal effect as to constitute liability,” or “personal liability.” This seems to me objectionable on similar grounds.
The Brightman Street bridge, where the accident happened, since it crossed navigable waters of the United States and 'was erected under authority granted by Congress, was subject to the provisions of the federal statute enacted March 23, 1906 (34 Stats. 85, c. 1130 [U. S. Comp. St. Supp. 1911, p. 1556]). Section 4 of this statute requires the draw of such a bridge to be “opened promptly, * * * upon reasonable signal, for the passage of boats and other water craft.” The evidence sufficiently shows the bridge with its draw to have been at the time under the county’s control, and the county to have been undertaking to perform the duties imposed by the statute. Here were two vessels desiring passage through the draw, and the draw was not opened. If it appears that “reasonable signal” for its opening was given, it is for the county to explain the failure to open.
Upon the tug, as part of her undertaking to get the schooner safely up river, the schooner having no duty save that of properly following the tug, lay the duty of signaling for the opening of the draw. Sound signals were the kind of signals required, because it was not yet daylight. The tug claims to have given six signals in all within hearing distance of the draw, each consisting of three long whistle blasts, three such signals before and three after passing through the Slade’s Ferry draw, as follows: The first when from one-fourth to one-half a mile below the latter draw; the second when somewhat nearer to it, after which it was opened; the third while passing through it; the fourth immediately after passing through; the fifth wjhen about half way from it to the Brightman Street draw; and the sixth just before the tug went underneath that draw. The tug’s master, who was steering her in her pilot house, testifies that he himself sounded all these signals.
The tug’s crew consisted of an acting mate (Angelí) on her forward deck at the time, the engineer (Braley) in her engine room, which was on her main deck and had windows through which he could see where the tug was, and the fireman (Reed) most of the time in the fire room below deck. The acting mate and engineer confirm the captain’s statement as to all six of the signals which he says he sounded. The fireman says that while working below he paid little attention, but noticed that “she blowed two or three different times.” Two witnesses called by the tug, apparently without interest in the case, also confirm the captain’s statement. One of them (Kirby) was foreman of the Slade’s Ferry draw, the other was one of the draw tenders there (Brown), and both were on duty there at the time. Two other witnesses were called by the tug, also apparently disinterested. One of them (Whittaker), a foreman employed by the street railway and at the time about a mile and a half away from the draw, says he heard the tug
The schooner (86 feet long) was being towed astern of the tug (83 feet long), with 100 feet, or a little more, of hawser between them. Her master, with two other men, composed her crew; all three being on deck at the time. The master (O’Keefe) and one of the crew (Mc-Manus, cook and deckhand) were witnesses on her behalf. Captain O’Keefe says that the tug sounded the first three signals described by her master, but that he heard no signals sounded after the one given upon clearing the Slade’s Ferry draw until the tug got to the Bright-man Street draw and was going under it. Then, as he says:
“X could not say what he blowed, or anything about it. I know he was blowing, because when I see he was going into that bridge I was pretty timid.”
McManus’ testimony was:
“He blew three short blasts for the Slade’s Ferry bridge. * * * Going through the draw of the Slade’s Ferry bridge, he blew three more short blasts for the Brightman Street bridge.”
He says there were no signals blown between the two bridges.
A watchman employed at the People’s Coal Company’s yard on the east bank of the river, between the two bridges, also a witness apparently without interest, called by the schooner (Smith), stated that he was in the office at the yard, heard a signal of three blasts, -left the office, and went down to the dock, some 75 feet away. From the end of the dock he saw the tow going through the Slade’s Ferry draw. He watched it until the accident. He heard no' other whistle signal, except the one heard by him in the office. This witness appeared to be somewhat hard of hearing.
In charge of the Brightman Street draw at the time, was Sullivan, a drawtender, called as a witness by the schooner, and Menchion, an electrician, called by the county. According to their testimony, Sullivan’s duties were to close the gates across the bridge west of the draw when the draw was to be opened, Menchion’s to close the gates on the east side and then start the electrical machinery which moved the draw. Their hours of duty were from- 11 p. m. to 7 a. m. Both were in the operating house on the north side "of the bridge, near the easterly end of the draw, in which house there was a stove. Both were sitting down, Sullivan reading. Door and windows were shut, the weather being cold. Sullivan, looking out of the window, saw smoke or steam below the the bridge, said to Menchion, “There is a tow between the draws,” ran out of the house, and shut the gates west of the draw. When he first saw the schooner,- she was half way between the draws. After he got the gates closed, he heard the tug sound three strong blasts when she went under the bridge. Menchion also came out of the house, whether before or after Sullivan, saw the tug, went to the
\. Some time before they thus left the house to close the gates, both •men had heard what théy then thought might be a tug’s whistle. It was a signal of three blasts according to Sullivan, of one blast according to Menchion. They decided that it came from the New York boat, whose wharf is below the Slade’s Ferry bridge, did not leave the house,. •and paid no further attention to the signal. According to Sullivan, this 'happened 20 or 25 minutes before they were aroused by seeing the tug’s smoke 'or steam. According to Menchion, it was about 15 minutes before the accident. The New York boat’s usual signal is three blasts, • a signal sometimes repeated, but not always.
i I must hold, on this evidence, that the tug has sustained the burden of showing that she gave reasonable signal for the opening of the draw. I should be much inclined to hold that signals given for the opening of the Slade’s Ferry draw before entering it were reasonable signals for the opening of a draw only about 1,200 feet further on. It is true that there are two wharves between the bridges, where vessels sometimes stop; but signals for up-river passage, sounded below the Slade’s Ferry draw, must be hardly less audible at the Brightman Street draw, and ought, at least, to put those in charge of that draw on the alert to know as soon as possible whether its prompt opening will not also be required. But, in any case, one signal sounded in or while clearing the ■ Slade’s Ferry draw would be, in my opinion, a reasonable signal, sufficient to require the prompt opening of the draw above.' That such ■a signal, at least, was given, seems to me clearly pi-oved. The,evidence leaves no doubt in my mind that the tug did in fact sound three signals after going into the Slade’s Ferry draw. The evidence further satisfies me that inattention and neglect on the part of Sullivan and Men.chion was the sole reason why the signals given were disregarded. The -county, therefore, whose servants they were, is in any case responsible for the failure to open the draw promptly as the statute requires. It .is liable for all the damage to the schooner, if this failure was the isole cause of the accident, and for half of the damage if fault on the tug’s part contributed.
. The schooner or the county have undertaken in the pleadings to charge the tug with fault in the following respects: That her captain was incompetent, that the tug went too fast between the draws, i that she did not slow down before getting to the Brightman Street .draw, that she did not turn and swing the schooner clear of the •bridge on finding the draw still closed), and that she did not slow .down, lie by, or wait for the draw to open before going under the : bridge.
The tug’s captain had had 26 years’ experience at sea, had been .a licensed pilot since 1889, and a licensed master of steam vessels since 1890. During his experience since 1890, he had averaged four ■ or five trips each week up and down the Taunton river as master of a tugboat with some other vessel in tow, passing on those trips
As to his speed between the bridges, the following facts appear: It is necessary, in taking a vessel up the Taunton river, to go up with the tide. The tide at the time was about half flood, running-up the river at a rate of about U/2 miles per hour as estimated by the captain of the schooner, and between 2 and 3 miles as estimated by the captain of the tug. The evidence affords no means more reliable than estimates for ascertaining the true rate. ' The tug’s engine, which, according to her evidence, had previously been running, ever since taking the schooner in tow, under one bell, the signal for half . speed, was slowed down somewhat, under order through the speaking tube from the captain to the engineer, when she entered the Slade’s Ferry draw. She thereafter kept on, without stopping, under this reduced half speed, until the accident. Without keeping some strain on the towing hawsers, she would not have been in control of her tow for want of steerage way. Some speed through the water was therefore necessary. There was a slight change of course to be made in coming out of one draw and into the other. According to the schooner’s captain, the rate of speed from one bridge to the other was about 6 miles an hour; according to the- acting mate of the tug, about 4 miles through the water. The tug’s engineer and fireman state that her engine was going as slowly as it could without stopping. Statements are in evidence that she was going “pretty lively,” or “at a good pace,” or “clipping it right along.” There is evidence that she was going faster than usual through the bridges, and that she was going slower than usual. Unless she was called upon to anticipate, while going through the, Slade’s Ferry draw, that the Brightman Street draw woirld not be open when she got to it, I find no reason to believe her speed greater than was proper, in view of the necessity for keeping steerage way. I do not believe her actual speed exceeded 6 knots, and think it may well have been considerably less. At 6 knots it would take her 2 minutes between the 2 draws., and at 5 knots about 2$4 minutes. The actual lifting of the draw from a state of rest has been found to take 36 seconds, according to the evidence of Merritt, electrician in charge. This does not include closing the gates, which according to Menchion’s estimate takes 45 seconds more, making the time required for the whole operation less than a minute and a half. Except in daylight, an observer at the Slade’s ■ Ferry draw could not tell whether the gates were being closed or not. Lights on the draw show red until it begins to lift, when they change' to green, and this would be the first visible signal that the opening had begun. , .
With the schooner and the tide behind her, I do: not .think the tug could safely have slowed down between the draws. As to the
If such a turn was to be made, steerage way amply sufficient for full control was indispensable, so that the claim that the tug ought to have turned between the draws is inconsistent with the claim that she ought to have slowed down. The total distance from the tug’s bow. to the schooner’s stern cannot have been much less than 300 feet. Allowing for sufficient speed through the water -to insure control both of the tug and tow and for the tide, I am unable to believe that less than twice this distance, or about half the distance between the draws, could have áfforded sufficient margin for safety.
As to the claim that the tug should have “lain by or waited” until' the draw was opened, it is obvious from what has been said that nothing of the kind could safely be doné after the schooner had once got away from the pier adjoining the Slade’s Ferry draw on its northerly side. To this pier she might have been made fast; but, once away from it, I see nothing that the tug could have done, if obliged to avoid the bridge ahead, but to turn with the schooner and to turn in time,
If,'then, the tug was bound to anticipate, before getting the schooner away from the pier referred to, that the Brightman Street draw would not be open for passage when she got to it, she would be in fault for not having stopped, instead of proceeding further. If she was not then bound to anticipate such failure to open the draw, but became bound to anticipate it before she had proceeded more than half way to the next draw, she would be in fault for not turning while it was-still safe to turn. But if not bound to anticipate any failure to open until after she was more than half way to the draw, I do not see how she can be held in fault at all. Even if, after the event, it could be. said that there was a possibility of turning safely within 600 feet of the draw, a wrong decision on the tug’s part between two such alternatives, in an emergency created wholly by fault on the county’s-part, would not be contributing fault on the part of the tug, according to the rule, familiar in collision cases, regarding error in extremis— a rule the more applicable here in view of the fact that the evidence-leaves it at least doubtful whether turning within that distance would be safe or not. The Elizabeth Jones, 112 U. S. 514, 526, 5 Sup. Ct. 468, 28 L. Ed. 812; The City of New York, 147 U. S. 72, 85, 13 Sup.
The evidence fails to satisfy me that the tug had become bound to anticipate failure to open the draw and to take measures accordingly at any time before she had proceeded half way toward it. I must deal with this question upon the assumption that, as I have found, reasonable signal for opening the draw hadl at that time been given at least twice after the tug had entered the Slade’s Ferry draw. Although the lights at the Brightman Street draw showed it to be closed when the tug and schooner passed the Slade’s Ferry draw, and continued so to indicate up to the time of the accident, the tug had the right to assume that drawtenders were in charge of it, having nothing to do but watch for such signals and respond promptly to them. In the absence of any signal of warning or caution from them, the longer opening was delayed, the more reason to-expect the delay to end. It ^does not appear-that there had been any previous failure to open the draw in time. That the opening had not infrequently been delayed on previous occasions until the tug had got considerably nearer this draw than half the distance between it and the other I am unable to doubt. The men on the tug so testified, and I find no contradiction, except such as comes from the drawtenders whose inattention to signals was the only reason why its opening was being delayed on this occasion. Under such circumstances, the absenóe of any emergency warning that the draw would not open in time amounted to an invitation to the tug to proceed. Manistee, etc., Co. v. Chicago (D. C.) 44 Fed. 87; Chicago v. Mullen et al., 116 Fed. 292, 54 C. C. A. 94; Clement v. Metropolitan, etc., Co., 123 Fed. 271, 59 C. C. A. 289.
The schooner’s captain testifies that, while passing through the Slade’s Ferry draw, some man, not identified, on that bridge told or sung out to the captain of the tug “that the bridge was closed,” and repeated the statement to the schooner as she followed through the draw. McManus, the other witness from the schooner, also on her deck at the time, does not testify to hearing anything of this kind, nor does either of the Slade’s Ferry drawtenders on duty confirm the statement, though each says that he called out to the tug or schooner that he saw no stir or sign of life at the draw above! The tug’s captain and mate say they heard nothing about the other draw from any one at the Slade’s Ferry bridge. I do not think that such calls, if heard, would add anything to the circumstances requiring the tug to anticipate failure to open. No reason appears for supposing any one at the Slade’s Ferry draw better informed about what’ the dlrawtenders at the other bridge were doing than the people on the tug. All knew that the other draw was still closed, and none of them, knew or could have known why at the time. It appears that the electrical machinery which lifted the other draw made a noise when thrown into operation, audible at the Slade’s Ferry draw, fon a brief interval before the draw actually lifted. Men whose time was spent
In .view of the nature o.f the duty incumbent on the county to have the draw open in time on this occasion, and in view of the nature of the failure to perform it, I am unable to find that contributing fault on the tug’s part has been sufficiently proved.
There must be an interlocutory decree for the libelants against the county of Bristol. As against the tug, the libel must be dismissed. The circumstances of the case seem to require, however, that no, final decree thus dismissing the libel should be entered until after the amount of damages recoverable from the county has been ascertained, so that the result reached as above can then be carried out by one final decree disposing of the entire case.