Southern Railway Co. v. Reeder, 44 So. 699

44 So. 699 | Ala. | 1907

McCLELLAN, J.

A drawbridge, constructed and maintained under and according to proper authority over navigable waters, is not an unlawful obstruction to navigation; but the owner of the bridge rests under the duty and obligation to provide for the safe and prompt passage of vessels through the draw. Reasonable care and diligence in the use and control of the bridge is required of those in whose custody it is; and the want of such care and diligence in the performance or omission to perform the duty stated and assumed carries liability for proximatelv resulting injuries.— Sections 3445 and 3446, Code 1896, are penal in their nature, and so must be strictly construed. Observing this rule of construction, we cannot agree with counsel for appellant that they establish exclusively the signals to be given by vessels intending to pass a drawbridge; nor with its contention that for injuries proximatelv resulting from the negligence of the bridge proprietor or his employes, or from that of a boat owner, the penalty prescribed by the cited authorities is the sole and excluding remedy for the injured party. In the latter matter no such intention to exclude all other redress can be gathered from the statute, even after exempting it from the familiar rule of construction applicable to penal enactments.

In respect to the set of signals mentioned in section 3445, the same observations are pertinent. That notice of an intention or desire to pass through a drawbridge may be properly conveyed to the tender by means other than the signals described in this section is not negatived by any language in it. The penalty stipulated, of course, could not be exacted unless the statutory conditions precedent were strictly observed. But this is far from excluding to craftsmen and bridge proprietors, suffering injuries attendant upon negligent conduct and seeking redress therefor in damages, the right to establish and use a signal method different from that provided by the statute. The gist of the action is the alleged negligent conduct of the bridge tender in opening the draw after he was by proper signals, and these given in reasonable time, advised of the intention of those in control of the approaching vessel to pass the draw. Of course, when so advised, it was his duty to promptly so adjust the draw as that safe passage could be effected. In reliance upon the performance of this duty by the defendant’s employe, those in charge of the craft had the right to approach the bridge at such speed and in such control of the boat and to such nearness to the bridge as reasonable prudence and care under all the circumstances, would require. We apprehend that, short of an aproach to a drawbridge so near or under such head, or under such conditions of water and wind or other weather surroundings, as would probably, under all the circumstances, render such management of a vessel equipped with proper appliances for stopping it and for locomotion forward and backward, in charge of skilled employes, hazardous or dangerous to it or the bridge, those in control may, without inviting the imputation of negligence on their part, take the vessel within such nearness to the structure as the circumstances and conditions adverted to would safely permit. Whether the necessary prudence was in the particular case observed, under all the circumstances attending the act, must generally be determined by the jury.

But, in reliance upon the performance of duty by the tender, the craftsman cannot, disregardful of due prudence and care, speculate upon the hazards and dangers incident to the occasion and situation. He must be at all times in such control of his vessel, which must be so equipped with the necessary and adequate machinery for control and operation as reasonable diligence would require, as that injury naturally resulting from the negligence of the tender may be, under skillful and prompt action and management, averted. The reliance upon another that he will do his duty as bound is not without limit. One ordering his conduct upon such reliance cannot go beyond that point Avhere commensurate care and prudence would indicate that further reliance and action thereon would likely result in injury if the duty anticipated of performance was not performed. Negligence, in a proper case, inhibiting recovery for injuries received, would intervene, if the reliance, carried into action, upon another’s performance of duty, was disregardful of the care and prudence the circumstances and situation presented raised as the boundary of further reliance upon the assumption that the duty would be performed. No other rule of conduct could be declared, we think, than that stated. The navigable waters are such without limitation, except that set against negligence to the injury of another and that stated with reference to duties related to lawfully maintained drawbridges. No line can be drawn for the approach of ves-seis to such structures with a view to passage; and the relative duty of those charged with the responsibility and management of vessels in such cases must be, in respect of negligence vel non, remitted to the triors of the fact to determine whether the prudence and care exercised was that requisite under all the conditions and circumstances surrounding. — King v. Ohio R. R., (C. C.) 25 Fed. 799, s. c. 24 Fed. 335. As we gather it from the record, the issues of negligence vel non on the part of the bridge tender and contributory negligence vel non of the plaintiff were properly submitted, under all the testimony, for the jury’s consideration.

Proximate cause is defined thus: “That cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of, and without which that result would not have occurred.” It is obvious that if the tender was primarily negligent in the performance of his duty, and if there was no contributory negligence on the part of those in charge of the vessel in respect of the approach to the bridge, both jury issues and by the jury determined in this case, the operation by which the boat was undertaken to be stopped after the discovery of the partially open condition of the draw, and in which the vital yoke broke, and that without the negligence of the boatmen, was the performance of the boatman’s duty, and that duty arose out of the negligent conduct of the tender. It was the necessity to safety — a necessity entirely and only attributable to the original negligence of the tender. The failure to stop the boat, short of injury, was due, it appears, solely to the breaking of the yoke; but that happening cannot, we think, avail to absolve the defendant from its liability from the natural consequence of its misconduct, which misconduct commanded the effort to stop the boat in the course of which the machinery, without warning, broke. The effort to avert the result was in the interest not only of plaintiff’s safety, but was also a motion to save a situation created •by the defendant’s negligence. To allow it exoneration from liability on that score would be to repudiate for it an act taken in obedience to a duty owed by the plaintiff arising because of the negligent defendant. One endangered by another’s act or omission cannot supinely drift to injury. He must with due diligence exert himself to avert the injury. If his effort, well directed, failed • without his fault, certainly no exemption from liability obtains to the advantage of him producing the necessity to make the effort. The breaking of the yoke was no intervening, efficient cause, severing the causal connection between the inceptive negligence and the resulting injury; nor can it be asserted, as matter of law, that the direction of the drift of the boat against a stationary span, with the purpose to avoid a collision with the swinging draw, and partially opened, was an act breaking the train of sequences put in operation by the primary negligence; nor can it be said that such an act was contributory to the resulting injury, since the unmanageable vessel was certain to strike the structure as it floated with the current of the stream.

The play upon the term “understood,” with reference to the signals alleged to have been given, is not warranted. It was the legal duty of the defendant to provide a tender to understand and respond to proper signals and without undue delay open the draw. This duty is not measured by, nor the performance of it conditioned upon, the mere understanding of the signals by the tender. If the proper signals are given, the duty to safely and with due dispatch open the draw arises; and the failure of the tender to understand the proper signals or to hear them is no excuse for the dereliction in duty.

The rule for the measure of damages, applicable to this case and in keeping with which the jury were instructed and defendant’s requested instructions refused, is affirmed in the case of Williamson v. Barrett, 13 How. (U. S.) 112, 14 L. Ed. 68, which is elaborately annotated in 5 Rose’s Notes, 145 et seq., to be those damages that would remunerate the plaintiff for necessary repairs and the market value of the use or hire of the vessel during the time necessary to make the repairs and fit her for business. Both these elements of damage are, with reasonable certainty in amount, ascertainable, and we are unable to see how any injustice therefrom could result. The lower court, therefore, Avas not in error in its rulings in respect of the measure and elements of damages involved in this case.

Over the objection of defendant testimony was admitted to the effect that, the next morning after the injury complained of took place, the bridge tender visited the vessel and inquired whether the plaintiff would take a named sum and drop the matter. This was error. The alleged declaration of the tender was not a part of the res gestae of the immediate transaction for redress of which the action was brought. Its inadmissibility is adjudged in the following decisions among others, of this court: Womack’s Case, 84 Ala. 149, 4 South. 618; Hawk’s Case, 72 Ala. 112, 47 Am. Rep. 403; Moore’s Case, 137 Ala. 503, 34 South. 617; Pearson’s Case, 97 Ala. 211, 12 South. 176 ; Hammond’s Case, 93 Ala. 181, 9 South. 577. The tender’s alleged statement was also erroneously admitted, because, even if authorized by defendant, it was a mere offer to compromise. — Collier v. Coggins, 103 Ala. 281, 15 South. 578.

Since another trial must be had, it is not necessary that specific consideration of other assignments of error be given. But it will probably be Avell, Avhen the case is again tried, to limit the testimony tending to show the damage, within the rule stated above, to those facts which Avill enable the jury, if they find for the plaintiff, to determine what the reasonable market value of the hire of the vessel during the time reasonably necessary to repair the damage sustained and the reasonable value of the repairs, or, to state the latter element differently, what the reasonable cost of such repairs ivas at the time made. What was in fact paid for the repairs is not the test,though, if shown to be reasonable in amount, it is evidence to go to the jury for their consideration.

For the errors indicated, the judgment must be reversed, and the cause remanded.

Keversed and remanded.

Tyson, G. J., and Dowdell and Anderson, JJ., concur.