17 Haw. 618 | Haw. | 1906
OPINION OF THE COURT BY
This is an action for $25,000 for the loss of a dredger through the negligence of the defendants. The plaintiff obtained a verdict for the amount claimed and the defendants bring exceptions to this court. The principal exception is that taken to the verdict as contrary to the law and the evidence, and this is the only one that can be considered. See decision on motion to dismiss the bill of exceptions, ante, p. 608.
The theory of the plaintiff is that the dredger was swamped in consequence of being put or left in a dangerous position through the negligence of the defendants. The defendants contend that no negligence on their part was shown, that if there was any negligence the plaintiff is estopped by its consent or acquiescence from setting it up, and that the evidence does not show so great a loss as $25,000.
The dredger consisted of a rectangular flat-bottom scow 40 x 100 feet with a ladder extending in front 75 feet, and with the necessary machinery. She drew 6 or 7 feet of water. Her machinery was covered by a house made of 1 x 7 inch tongue and groove built 9 feet high on a coping six inches thick by sixteen inches high on the deck. The house had a pair of sliding doors 12 feet wide at the stern, and smaller sliding doors on the sides. It covered most of the deck, leaving spaces outside of it on the deck about 4 feet wide at the sides, six feet at the stern, eight feet at the bow to the ladder and fourteen feet on the sides of the ladder. The dredger was without means of self-propulsion.
The defendants contend that much weight should be given to the opinion expressed by the trial judge that the verdict was contrary to the evidence on the question of negligence, notwithstanding that his order granting a new trial upon that ground was set aside by this court as made without jurisdiction. See decisions ante, pp. 374, 445. The question being whether this court should set aside the verdict and grant a new trial, it is not precisely the same as it would be if it were whether this court should set aside an order for a new trial made by a trial judge -within his jurisdiction. But, assuming that some weight might well be given to an opinion expressed by a trial judge even under such circumstances, such opinion, of course, would not be all-controlling, and in the present instance the reasoning of the trial judge, which is set forth at length, is so clearly insufficient to support his conclusions and the evidence is so
The defenses, although not thus stated by the defendants, are substantially (1) that the plaintiff is estopped, by its consent to or acquiescence in the defendants’ taking the dredger to Pearl Harbor, from setting up negligence on their part, and (2) that there was no negligence on their part, or at least that, if there was any, it was not the proximate cause of the loss.
In support of the defense of estoppel it is contended in the first place that the then superintendent of public works, Mr. Boyd, gave the defendants, through Mr. Agassiz, permission to take the dredger to Pearl Harbor. The only testimony upon this point is that of Mr. Boyd on one side and Mr. Agassiz on the other. Mr. Boyd in answer to the question, “Can you state whether or not permission was ever granted by you for them to take the dredger to Pearl Harbor,” replied, “Not to my recol-lection.” Mr. Agassiz testified, “My recollection is that he did give me permission to take the dredger to Pearl Harbor.” It was for the jury to say whose recollection was the better. The remaining testimony of these witnesses upon this point tends to show, in large part at least, that Mr. Boyd, when requested by Mr. Agassiz for permission to take the dredger to Pearl Harbor, declined to make any agreement at that time although he expressed a willingness to enter into an agreement on certain terms at a future time. The plaintiff contends, and with much support from Mr. Boyd’s testimony, that Mr. Boyd told Mr. Agassiz that he would not enter into any agreement until the defendants had taken over the contract for dredging Pearl Harbor bar, which would be after his return from the mainland, for which he was about to depart, and that then he would permit the dredger to be taken to Pearl Harbor only on condition that further security in the form of a bond should be given for her safety, and that he would agree to allow the use of the dredger to be continued there after the expiration of the contract already made for a rental of not to exceed $1000 a month. The defendants contend that permission was given to take the
The defendants and the circuit judge seem to mistake a contemplated final agreement for a mere formal execution of a final agreement already made. Worse, they contend that even if the superintendent said that he would permit the dredger to be taken to Pearl Harbor only on condition that a further bond should be given for its safety, and even if that condition was not fulfilled, the plaintiff would be estopped from saying that using the dredger there was negligence, and they argue that it would not be any more negligent to use it there before permission was given to do so than it would be after that. They seem to confuse to some extent the idea of an estoppel on the part of the plaintiff from setting up negligence on the part of the defendants with the idea of absence of negligence as a matter of fact. If the plaintiff was willing that the defendants should use the dredger in a dangerous place or under dangerous conditions, provided the latter would assume the risk and provide-for full compensation to the former in case of loss, the inference would be that the plaintiff considered that it would be negligent to use the dredger there rather than that it would not be negligent to do so, and such an agreement would not make that prudent on the part of the defendants which would otherwise be negligent in fact. Nor would willingness to make such an agreement work an estoppel. Otherwise, no one could set up as negligent anything whatever done to his property if he would be willing to have that done upon his being fully compensated or secured — which would be absurd. If in such case the consent of the plaintiff would estop it from bringing an action on the case if the dredger were lost and confine it to its right of action on the contract or the bond, it is still beyond dispute that a proposed agreement or conditional consent of that kind' would not estop it from bringing its action on the case- if the
The defendants contend, next in support of the defense of estoppel that the plaintiff, through its superintendent, Mr. Boyd, or assistant superintendent, Mr. Campbell, had knowledge that the defendants took or were to take the dredger to Pearl TIarbor and that that is sufficient to constitute an estoppel, or, as they and the circuit judge seem to think, is sufficient to take' the character of negligence from what would otherwise be negligence. There is nothing whatever to indicate that Mr. Boyd had such knowledge. On the contrary soon after his talk with Mr. Agassiz he left the Territory and apparently did not return until after the dredger sank. And as to Mr. Campbell, the only evidence is that Mr. Agassiz on one occasion when calling on Mr. Campbell, then a very sick man, at his home, casually remarked that, “We are nearly ready to take the dredger to Pearl Harbor,” and that Mr. Campbell said nothing as to the safety of taking the dredger there. Mr. Agassiz also testified that Mr. Campbell knew that they were getting the dredger ready to take to Pearl Harbor, and that they had been for two or three weeks, although he does not state how Mr. Campbell knew this. The failure of a very sick assistant superintendent to raise objections to a friendly caller at his home to a mere casual remark as to what, the caller was nearly ready to do could hardly operate as an estoppel against the Territory. It does not appear what authority, if any, Mr. Campbell had in the matter. He may have supposed either that Mr. Boyd had made arrangements for taking the dredger to Pearl Harbor or that when Mr. Agassiz got ready to take her there he would before doing so first complete the conditional arrangements already made with Mr. Boyd. Mr. Agassiz knew as well as Mr. Campbell could have known the arrangements with Mr. Boyd and Mr. Campbell may not have known them at all. Certainly Mr. Agassiz was not seeking Mr. Campbells
It is contended further that since the original contract did not specify where the dredger was to be used the defendants had a right to use it at the entrance to Pearl Harbor, or at least that such was the law of the case whether right or wrong as given in defendants’ requested instruction 3 as follows: “This agreement allowed the defendants The use of the government suction dredger’ without confining the place of use to any particular locality. Using the dredger for dredging out the entrance of Pearl Harbor may be presumed to have been contemplated by both parties, consequently the defendants are not necessarily chargeable with negligence by the mere fact of using the dredger at that place, whether the plaintiff expressly agreed that it might be used there or not.” As matter of fact the jury might well have found that the parties did not contemplate the use of the dredger at the entrance to Pearl Harbor. The dredger was not a seagoing dredger and had always been used in the harbor of Honolulu, although she was once taken a short distance outside for a day or so, where she wras found
But let us assume that the defendants had a right under their original contract to take the dredger to Pearl Harbor and use her there or, if not, that it was not negligence even if it were a breach of contract to take and use her there, or that the plaintiff through its officers not only knew that the dredger was to, be taken or was taken there hut even expressly consented and that unconditionally that she might be taken and used there. Still, there would be no estoppel except as to taking and using
The defendants contend that there was no negligence in keeping the dredger there and that the loss was not due to such negligence, if there was any, but was due to possible unknown causes, which they contend the plaintiff should have negatived or excluded, or to defects in the construction of the. dredger. It is true that no evidence was produced to show what took place between midnight and the time, a little more than two hours later, when the dredger sank; that the burden was on the plaintiff to show negligence on the part of the defendants; that it could not be presumed in the absence of evidence that the defendants were negligent during that time; and that the dredger, so far as the evidence shows, was in good condition and practically free from water at midnight. But it was unnecessary to show any special negligence during those two hours, and, indeed, it is difficult to imagine what the defendants could have done during that period or neglected to do which would have made any difference in the result if the loss Avas caused, as apparently it must have been, through the water coming over the dredger or into her from the bottom. The negligence, if any, Avas in placing the dredger there Avithout providing means of taking her to a place of safety in case of danger or in keeping her there without adequate protection in
The defendants attempted to show that the loss was caused or might have been caused by defects in the dredger herself which were unknown to the defendants. The only evidence tending in this direction consists of the testimony of Captain Scott of the Kaena to the effect that on the morning before the dredger sank, when he happened to go aboard her, there was shaking and the brick work about the boilers was opening and shutting about four inches, and that after the dredger sank he brought up a plank that came out of her deck. The evidence as to the plank is in itself of no significance, for not only did that come out of the deck and not out of the bottom but it came out after the dredger sank, and according to the testimony of Mr. Agassiz the upper part of the dredger began to break up under the action of the waves almost immediately after she sank. As to the brick work, the testimony of this witness might well have been disbelieved by the jury. Taken as a whole it does not make a favorable impression. The fact, if it was a fact, that the brick work was opening and shutting four inches was perhaps the most significant fact that the defendants could rely upon, and yet not one of their other witnesses alludes to it excepting Mr. Agassiz, who says he never heard of it until shortly before the trial — a year and a half after the dredger sank. Even the foreman of the dredger, Haggart, whose attention Captain Scott says he called to the condition of the brick work at the time, says nothing about it. Other things, such as the breaking of the cable, were reported
There was ample evidence upon which to base a finding that the defendants were negligent in keeping the dredger where she was under the existing conditions, and, if there was such negligence, the jury was justified in finding that it was the proximate cause of the loss. In the first place the dredger was fully described to the jury and from that description, as well :as from the testimony of Captain Macauley, an expert, to whom the dredger was described in a hypothetical question, and who was also personally thoroughly familiar with her, having formerly operated her, the jury could not very well have found ■otherwise than that she “was not a sea-going dredger.” It was also shown by the testimony of several witnesses that rough water might have been expected from time to time at the place where the dredger was moored and indeed that wind and water
The exceptions are overruled.