239 F. 458 | 3rd Cir. | 1917
This suit in admiralty was brought by Clyde Steamship Company against the Steam Tug Louise Rugge, The Board of Chosen Freeholders for the County of Essex, The Board of Chosen Freeholders for the County of Hudson, and The Snare & Triest Company, to recover damages for injuries sustained by the libellant’s lighter, The Boston. From a decree finding The Snare- and Triest Company in fault and dismissing the libel as to all other respondents, this appeal was taken.
The facts of the case appear at length in the opinion of the District Court. 234 Fed. 768. Only the substance of the testimony, as it bears upon the discussion of the matters for review, will be given in this opinion.
The Boston, a hand winch, mast and derrick lighter, square ended, without steering gear or motive power, was being towed, stern first on short lifies, by the Tug Rugge, up the Passaic River. On passing through the draw of a temporary bascule bridge, which The Snare & Triest Company had constructed for use while erecting a new bridge under contract with The Boards of Chosen Freeholders of Hudson and Essex Counties, the upper extremity of the lighter mast was struck by the overhanging draw span of the bridge, causing it to break and fall, thereby occasioning the injuries complained of.
The libellant, conceiving that it had sustained damages by the negligence of someone, filed a libel against everyone having a possible relation to the, accident. These included the tug which was towing the lighter, The Boards of Chosen Freeholders of the two counties for which the new bridge was being erected, and The Snare & Triest Company, contractor, engaged in the new work in connection with which the temporary bridge was built and operated. The libellant charged negligence in a wandering way, first against the tug for carelessly handling her tow in passing through the draw; and then against The Boards of Chosen Freeholders of the two counties and The Snare & Triest Company (according as the testimony might fasten negligence upon one or the other) in the operation of the span. Each respondent, defending separately, attempted to exonerate itself with indifference as to the effect of its defense upon its co-respondents. The tug denied negligence in its manoeuvres; the Boards of Freeholders, while not denying negligence in the operation of the bridge, denied their liability for it, upon the ground that the temporary bridge was operated at the time of the accident .by the Snare & Triest Company under a contract with them to operate the same for the free passage of vessels, and to be responsible for all accidents resulting therein'; and the Snare & Triest Company, while producing no testimony to disprove negligence, denied liability for the negligence proved, because, as it contended, it had been relieved of its original liability under the contract with the Boards of Freeholders for the safe operation of the bridge by .a change in its terms, whereby, at the time of the accident, the bridge was operated by servants of the Boards of Freeholders of. the two counties for whose negligence the counties were liable. In this state of the pleadings the trial opened, the libellant endeavoring to place the responsibility with indifference upon some re
The complaint of the Snare & Triest Company (hereinafter called the appellant) is two-fold; first, that the court erred in finding from all the evidence that it was in fault; and second, that in reaching that finding, the court erred in using against it evidence produced by other respondents in their own defense, when between them and the appellant no pleadings had been filed and no' issues joined.
In this case there was an issue between the libellant and the several respondents, each being charged with tire negligence which inflicted the injury. It was therefore necessary for the trial court to consider either separately or collectively the whole testimony in order to determine where the negligence lay, the liability therefor, and the measure and perhaps the division of damages. It is easy to find from the court’s opinion the testimony upon which it dismissed the libel as to three of the respondents, but it is not entirely clear upon whose testimony the court found against the appellant. It may be that the finding was based in part upon the testimony of witnesses other than those produced by the libellant. We are therefore inclined, without approving the appellant’s theory, to review the case, first, upon all the testimony, and second, upon the testimony of the libellant’s one witness as to negligence, and of the appellant’s one witness in reply.
We concur in the decree of the trial court based upon the whole testimony. Briefly stated, it shows that the tug, having in tow the libellant’s lighter, blew for the bridge when about 2,000 feet away; that she lowered her speed to one bell, and then stopped her engines entirely and drifted towards the bridge waiting for it to rise; that, though the night was dark, the bridge lights were plainly discernible, and that she started only after the light on the end of the bridge showed that the bridge had been raised' and had stopped, and then with due care proceeded on a course that would have enabled her tow to' clear the bridge had the bridge been fully raised; that in passing through the draw, the mast of the lighter struck the overhanging span, whereupon the span wás instantly raised to its proper and full height. It further appears that the bridge was a temporary structure, of a lift or bascule type, used in connection with permanent work being conducted by the appellant under contract with the counties of Essex and Hudson; that under this contract the appellant undertook to operate the bridge, and assumed sole responsibility for accidents of any kind that might occur during the progress of the work; that after the contract had been entered upon, an arrangement was made between the appellant and the Boards of Freeholders of the two counties, whereby the bridge-tenders previously employed upon the old bridge should be retained, and to secure payment for their services the appellant surrendered to each county a certain portion of its contract money.
By this testimony we think the District Court was justified in its findings of fact, that by no possibility was the libellant’s lighter in fault; that the tug was not in fault; and that the negligence which caused the injury was the negligence of the men who operated the draw.
“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 and 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.” Cooley on Torts, 624.
The court followed the tendency of modern decisions in disregarding as essential or controlling the mere incidentals of the situation, such as the mode and manner of payment of wages and which of two parties had the power of discharge, Atlantic Transport Co. v. Coneys, 82 Fed. 177, 28 C. C. A. 388, and was right in applying the test pointed out by the Supreme Court in Standard Oil Co. v. Anderson, 212 U. S. 215, 221, 222, 29 Sup. Ct. 252, 53 L. Ed. 480, by inquiring whose was the work being performed and by ascertaining who had the power to control and direct the servants in the performance of that work.
The appellant seeks to escape the burden of the testimony of its co-respondents upon the theory that as they did not file cross-bills against it and as it did not file cross-bills against them, their testimony, by analogy to the confession of a co-defendant and to the rule that the answer of one defendant is not evidence against another (Conklin’s Admiralty [2d Ed.] vol. 2, page 270), is not binding upon it. Of course the answer .of one defendant is not evidence against a co-defendant any more than is the confession of one binding upon the other, and nothing of the kind was attempted at the trial. The situation of the respondents did not call for or permit interpleading between them by cross-bill. A cross-bill is in the nature of a cross-suit, to be heard in the original suit, and is filed to the original bill when a counter-claim is urged or affirmative relief is prayed with respect to a matter arising out of the same cause of action. No respondent' made counter-claims by answer against other respondents affecting
The appellant’s contention that it is not bound by the testimony of its co-respondents introduced in exoneration of themselves, does not, even if sound, aid it in the state of the testimony just recited. The libellant proved a prima facie case of negligence against the party responsible for the operation of the bridge without showing who that party was. The appellant supplied this omission in proofs by showing that at one time it was the party responsible for the operation of the bridge under its contract with the Boards of Freeholders, but for defense maintained (without controverting the proven negligence) that it was not responsible at the time of the accident because it had been relieved of the operation of the bridge by an alteration in the contract. Therefore, the appellant’s defense was in the nature of confession and avoidance, confessing the fact of negligence by not controverting it, and avoiding it by endeavoring to show that it had been relieved of
The decree below is affirmed.
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