234 F. 768 | D.N.J. | 1916
The libelant seeks to recover damages for injuries to a lighter, The Boston, which was owned by it at the time of the collision, was in tow by the Louise Rugge at that time, and was injured by its mast coming in contact with the draw of a temporary bridge, which had been erected by the Snare & Triest Company upon the Passaic river for the chosen freeholders of Essex and Pludson comities, respectively.
The bridge was of the ordinary bascule type, and was intended to be used, and was used, during the erection of a bridge intended to he permanent, and to connect Bridge street in the city of Newark with Harrison avenue in the town of Harrison. A written contract between the Snare & Triest Company and the chosen freeholders of the respective comities, acting through a joint committee, provided for the erection of both a temporary bridge and a permanent bridge, and by its terms required the Snare & 'I'riest Company to operate the temporary bridge and to be responsible for accident, as appears by the following provision in said contract:
“The temporary bridge 5s to bo operated and kept in flrst-dass serviceable condition and repair by the contractor during the progress of the entire work, and to the sai Madden of the engineers in charge. The contractor must assume nil ‘responsibility Tor the safety of the traveling public and will be solely responsible for accidents of any kind that may occur during the continuance of this work.”
The Boston, a hand-winch mast and derrick lighter, without power of its own, square at each end, ivas proceeding up the Passaic river with a load of lumber in tow of the steam, tug at about 9 o’clock on the night of August 14, 1912. Its mast, which was 60 feet high, struck the draw span of the temporary bridge about 1 foot from the top of the mast. This caused the mast to fall, and caused such other iujaides to the lighter that a new mast, deck planks, and other repairs were required to be made. The boat was out of service, while the repairs were being made, 12 days, excluding one Sunday. The repairs,
“that vessels navigating the river shall heave to at each of the numerous bridges that span the river, and critically examine whether the bridge ha,s been swung and whether it has been locked.”
Nor is it required to delay proceeding until it receive some special signal from those in charge of the bridge to proceed. The usual customary signal is all that is required; and, if the only signal to proceed is the raising of the draw, the captain of the tug cannot be deemed negligent if he proceeded, although those in charge of the draw be required by law to give some other signal. It is the duty of those in charge of a draw to obviate any unnecessary delay to passing vessels. Central Railroad Company of New Jersey v. Pennsylvania Railroad Company, 59 Fed. 192, 8 C. C. A. 86. In the opinion of the case last cited there is a suggestion that those in charge of the tug had a right to suppose “that the draw would be opened seasonably to permit the tug and her tow to pass.” There seems to be no doubt of the law as stated in Clement v. Metropolitan West Side El. Ry. Co., 123 Fed. 271-273, 59 C. C. A. 289, 291, in relation to bridges across navigable streams:
“If for any reason the bridge cannot be opened, proper signals should be given to that effect, such as will warn the approaching vessel in time to heave to. A vessel, having given proper signal to open the bridge and prudently proceeding under slow speed, has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She * * *, may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and, may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened.”
Under all the circumstances and in the light of the testimony viewed in every aspect, this court cannot find that there was any negligence on the part of those in charge of the steam tug which would make her or her owners responsible in this case.
The court is not satisfied that any arrangement was made between the contractor and the boards of chosen freeholders of either county whereby the duty imposed upon the contractor to operate the temporary bridge and to' assume responsibility for accidents was in any way diminished. The retention of those formerly employed in the operation of the bridge to be supplanted by the new structure would probably be of some advantage to both parties. All the testimony upon this point warrants the inference that this is a case where the servants of one party are hired or loaned to another. The law is, in such a case, that they become the servants of the latter for the time being. In Atlantic Transport Co. v. Coneys, 82 Fed. \77, 28 C. C. A. 388, Judge Shipman, delivering the decision of the Court of Appeals of-the Second Circuit, uses this languáge:
“The tendency of modem decisions is not to regard as essential or controlling the mere incidentals of the contract, such as the mode and manner of payment, * * * or whether the owner can discharge the subordinate workmen, and not to regard as essential, or an absolute test, so much what the owner actually did when the work was being done, as what he had *a right to do.”
In 2 Cooley on Torts, star page 624, there is this language:
“If the servants of a man are sent to work upon the property or the premises of another, they will become the servants of the latter if they work under his direction or control; otherwise not; and, where the servants of one person are hired or loaned to another, they become the servants of the latter for the time being.”
In the case at bar, the Snare & Triest Company stood in the relation of an owner of the bridge which it had agreed to build and operate until the completion of the permanent bridge. It borrowed or hired, as the case may be, men in the employ of the boards of chosen freeholders. It was not bound to retain them if they neglected their duty. They were under its control. It cannot shift the responsibility for their negligent acts upon the boards of chosen freeholders of the respective counties, or either of them. The. conclu
There having been serious doubt as to who was the party responsible for the collision, the joinder of the respondents in this case was not improper. It therefore follows that the libelant should not be. answerable for any of the costs. It also follows that those in charge of the steam tug Rugge were not in fault, and that the respective boards of chosen freeholders of the respective counties were free from fault, and therefore should not be made to pay the costs, but rather to recover them. Therefore the court, under all the circumstances, is of the opinion that'the libelant recover of the respondent the Snare & Triest Company the sum of $826.25, with interest to be added from March 1, 1913, and that costs be taxed against the Snare & Triest Company, and that the libel should be dismissed as to the Rouise Rugge, with costs to be taxed against the Snare & Triest Company, and, further, that the libel should be dismissed as to the board of chosen freeholders of the county of Essex and the board of chosen freeholders of the county of Hudson, with costs to be taxed against the Snare & Triest Company.
Ret a decree be drawn.