ST. LOUIS & ST. P. PACKET
co. .. KEOKUK
& R. BRIDGE CO.
r , ','
CO. V. KEOKUK'&HAMILTON BRIDGE CO.
s. D. Iowa.
The,measurement of .the lengtbof a draw. within the meaning of the act of the bUilding of a draw-bridge over the MiSSiSSiPPi, river at Keolbi1t; Iowal 'and requrrlng'the draw to be 160 feet in length. must be on alineatrig!ltangles totbil'piers, upon the surface of thll water atlow-water
,;", , '
Under that section of tbe act of congress requiring'the piers to be built the 'bridge company is required to use only reasonable care ,alld foresight in the lOcation, of its piers'.lf the 'piers at the time of , lQCatiQh are 'parallel to the current, and by some act of the government subse· quelit to' the' efection, of' the' bridge. or by any other means not within the cODu-ol of the 9Ul'rept is so as to prevent pIers" l.t ;18 lD,cum1?ent upon the company to conform Its paIrs to the new 'cQnpition of things.' "But if the company lillo's constructed its piers with 'reference;to acts of the government, and has used reason,and ,fprming llJld its, plans, and the change ,is .suchas,not to unreasPnaoly endanger 'navi!tatiob, negligence is not to be imputed to it. ' '" . " ",., ,,",
4. SAME. :/, ,Urpb,o the quest,ion
strQQture dangerous naviqf afailll,!ec to cOlpply with the of the of congress authqn1\lng itslcoIlstruCtlon, and wheretberels conlhctmg tes'tibii<inys'B to whether the,stmot\1redoo8 substantially,meet thereqoIremeJ;lts ...., PfJl,Ot. thejul'y,have a ,the actual tl1-cts of J;lav:igation ,at the "drlj,w,in question through long period during which the draw has been .. 'used. ' , , , ,( " ;; , " , 6. BAKE. ' , ·A'pilot. in navlga,tibg a stream over is ,a ,draw-bridge, is only ;oWilged to ,use ordinary, skillllnd care in thr\>ugh the draw; and the did under all the cit<!umstan'ces,is one for the jury.
,P", " ,
il1ridge. thE! jury will i,ll-view of the, of a river by steaJJ1,wnere such nar1gatlOnttteets numerous 'brl'dges, that the mJury may be' the result Of purely physical causes. and unavoidable by the intervention ofrblumanagency. ,7.,8AM:J,lJ. , ; :' , ' " ,.' tt (s ,not proper to in,struct ajury that, if abridge over a navigable stream is ala.wfUI structure. and asteam-boat i!rrun down against itiinjuring one of·the:piers;:theverdict shall biffor the bridge company.
fin an .action for damages growing out of a stea,m-bqat running into a draw-
, : Givtn OdmpbeU 'andJ. H..
for plaintiff'. A. J.McOra:ry,and A-iJInJlHagerman, for,defendant.
before you' is of very:great im'In addition to the large pecuniary interests directly involved, concern.ing the bridging
tion of the Mississippi river. It therefore demands your most careful consideration. This is not a proceeding to. declare the Keokuk and Hamilton bridge an unlawful structure, and to have it as such abated in the interests of the public. is private action for damages, in which the essential charge is negligence on the part of the defendant in the building of the bridge. UN egligence" is the gravamen of the action but this word, mits legal sense, is very different from its received signification in cOmmon language. In; common speech, the word "negligence" is used as synonymous w.ith" carelessness," Pllt it has a much broader meaning in legal parlance. Thus the failure to exercise proper 'skill, law requires it, is,negligence, though ever so much care be used il;). 4pingthe act failure to perform a legal duty is negligence. The omission to do what,the law reqllkes, Or the failure to do anything iri the manner prescribed by la.w, is 'negligence per se. lt is in this sense that the plaintiff charges the defendant with Dl3gligence in the present case. . . . The Keokuk and Hamilton bridge is an authorizedstruoture. The right to build it was granted by allll£;t the plaintiff charges that. in. severaJ.· essential particularsthedefendiuit failed. to build the bridgeasipres'cribed by the'act of eongress, and inihis committed negligence,cauEling. tpe injurycomplained of. T4'epla.intiff in this action is the owlier ·of the steamer War Eagle, employed,;in the trade of the Mis$issippi between St. Loufsttnd"St.'Paul. The defendant corporation is the proprietor of the di'ilw-bridge over that 'river between Keokuk and Hamilton. The plaintiff claims damage to the amount of $50,000, resulting from a collisiOIi of the';stealller with the bridge, by which the vessel was injured, .and one span oftne bridge destrdyed. The brjdge was built byatlthority of an act of COngress, which,among other things, provides that,if any bridge built under said act be constructed as a drawbridge, the same shall be erected as a pivot with a draw over the main channel of the river, at an accessible and navigable point, arid with spansofnot less than 1eO'reet in length in the clear on eachside pier of the draw; and that the piers of said bridge of the central shall be parallel with the current of the river. The War Eagle was one of the .and most v!\luable boats in the navigation. " She was equipped lj,nd manned,. .river was at a stage the highest ever known, except in thedloods 0(1861.. The current at the point of contact with the bridge, about a quarter of a mile below the Des Moines rapicis, was swift and I;ltrong. .The boat was heMry-laden. She held her along the out!')r 'wall o( tlle government canal, which was closed at the time of the accident·. This occurred on a night in November, in the year 1881, about 8 o'clock P. M. The night was not dark, but rather mQonlight! arid quite calm. The boat attempted to pass the draw on theJowa side, bow foremost. Her bo,w was caught in an eddy within the draw, which turned her towards the Iowa shore. The pilot, after ,vain efforts· by theu.sullI 'and proper means to straighten her, seeing that she would be. thrown upon the pier, and destroyed, backed her above the rest piertowardl!l the Illinoisshorej but the force
ST. LOUIS & ST. P. PACKET CO. 'V. KEOKUK & H. BRIDGE CO.
of the current was so great that she could not be controlled. She was carried by the violence of the current against the bridge, east of the draw; one span of which gave way, and was destroyed. The boa.t. floated through the broken span, and sunk a short distance below the bndge. The plaintiff complains that the injury occurred in consequence of the negligence of the defendant in the construction of the bridge. It is atleged that the defendant, in locating piers and the bridge, failed to conform to the act of congress m the followmg particulars: (1) That the draw is not over the main channel of the river; (2) that it is not at an accessible and navigable point; (3) that the draws are not 160 feet in the clear, within the meaning of the act of congress; (4) that the piers are not placed parallel to the current of too river, The defendant, upon its part, denies the truth ,0Lthese allegations, and takes issue upon the same. And the defenda'llt,by way of cross.,. claim I' sets up that, while the bridge was constructed in all respects as by the law of congress, the accident and injury 'w,ere the :t;esllit of the .plaintiff's own negligence and want of skill in t4e navigation and passage of the draw; .alld the defendant, therefore, p.rays judgment for the sumof.$100,000, growing out of the injury to the bridge. The contentjon of the plaintiff is that the main channel of the river is coincident with the habitual course of navigating vessels, and that the evidence. shows that the draw of the bridge is not over the "J;Ilain channel,"as thus indicated. But this argumentproc!Jed s upon a mistaken construction of the statute. It is clear that the. words" main channel" in the statute do not mean the habitual and best course of navigation, although they may be employed in that sense by pilots and otp.er boatmen. If the words were used to indicate the best course of navigation which is habitually followed by steam-boats t\nd other water-craft, the provision that the draw shall be ata point "accessible and navigable" would b!l quite superfluous and senseless, since that line of navigation must necessarily be always "accessible and navigable." It wQp.ld have been most unwise iu congress to prescribe so strict a limit for the place Qf the draw. The deepest water and best currents habitually pursued by steam-boats are sometimes found close to the shore, where it might be difficult or impossible to place the draw of a bridge. The act of congress is of a general nature, providing for the building of all bridges upon the river. Now, it might be necessary to locate the draw of a bridge with reference to a canal or other work of the government for the improvementof navigation, and this might be difficult or impossible, if it were required absolutely that the draw should be placed over the usual path of steamers and other water-craft. This was the case with the bridge before us. . draw was established with reference to the plan Qithe gove;rnment canal, after consulting with the government officials in charge of that ,work. . I What is, the "main channel" of a river? It may be difficult to define it with precisi<;lll, but I think it sufficient to say, that the main channel is that bed ofariver over which the principal volume of water flows. Many great rivers into the sea through more than
one cnannel. This is true of the Nile, the Ganges, the Indus, the:, V(}lga, the Danube, the Amazon, the Mississippi, and many others. They all, 'however, have a main channel, through which the principal volume of water passes. So, in their upper course, great ri,versare at, many places broken into' different channels by interposed islands, but there is generally a channel where the principal I'iver flows. Now, it was the purposeof congress that the dlaw of a bridge should not be placed over al:iy of the smaller or inferior channels, but over the principal river, where boats would have most room to maneuver in passing the structure; and it was adequate limitation that the draw should be at a point "accessible nnd navigable." If this was accomplished,. what more could be desited? Again, itis insisted that the open spaces between the draw-piers must be 160 feet at right angles with the current,and that, if the bridge was built not parallel to the current, so that the flow of the water is diagonally through the dl'aw, forming a cross-current, then the measurement must be at right angles across the current; and not at right angles to the walls of the draw-piers. I cannot recognize this doctrine as sound. If it be true that the dl'aw-piers stand not parallel to the current, and that a cross-currelit .exists within them, resulting from the fact that they were spbuilt, it may be that 'negligence may be justly imputed to the defendant in failing ufconstruct its bridge in conformity to the law. But this furnishesno'!mfficient ground for the mode of m!3asurementclaimed by the plil.intim" 'Thel'eis nothing whatever in the statute limiting the space to be measured,by the current within the piers. That rule of measurel1l&n1!seems to my mind artificial and impracticable.' The plain interpretation tlf'the statute is that the space between the draw-piers shall be '1'60 feet 'in the clear, measured by a line at right angles to the piers, upon the: surface ofthewater, at low-water mark. The defendant's counsel' contend that the spaces between the drawpiers shd;Uld mel1sured,not at low-water mark, butby the line of the spans ofthe bridge. I cannot 'concur in this proposition. The statute must It construction consistent with the reason of the law. The width of 160'[6et, required for the safety of navigation, is at the line where the boats float, and not at the top of the coping of the bridge, where no boat carr 'ever be. But the ground 'of action upon which the plaintiff apparently relies with most confidence, is that the piers at the draw are not parallel to the current of the river, and that the bridge is therefore an unlawful structure. Counsel contend: that the.current flows diagonally into the draw, creating the eddy, whi'chwas th,e direct and immediate causeofthe injury to the boat. To this view the defendant's counsel answersthatj if the fact be as' alleged, the defendant is not responsible, beeausethe goverment of the United States, some time after the bridge was built,catisedan excavation of severRlifeet hi depth to be made' iI:!- the rodk' bed of the river between the lower lock and the draw of the bridge, andthattheevidence shows that the natural consequence was th/l,ttne cnrrent'was -Changed from its originaldirectionto the draw. repIY,'the plaintiff's counsel
ST. LOUIS & ST. P. PACKET CO. V. KEOKUK & H. BRIDGE CO.
insist that the ansWer of defendant is untenable and insufficient; that the .act of congress imperatively requires, in the interest of navigation, that the piers shall be parallel to the current; that even, therefore, if the current should be changed by a convulsion of nature, so as to prevent navigation through the draw, the defendant would be required either to change the pier or remove the bridge; that the same is true of a similar obstruction to the navigation caused by an erection in the river by the government, changing the direction of the current; and that in such case the defendant. would be compelled to conform the piers of the bridge to the changed current, and look for indemnity to the government. The court,· however,cannot give its assent to this extreme doctrine. If, by the act .of the government, subsequent to the building of the bridge, or by,any other means not within the .,defendant's control, the currents were so radically changed as to materiaUy obstruct the navigation, and make the passage of the draw dangerous, it would have been incumbent on the defendant to change the piers inconformity to the new condition of things; because all private interests must be subservient to the public: good ad in no event could a material obstruction to the navigation bemamta.illed to subserve any private interest whatever. But if the jury find that the change in the cu.rrent to the draw by the ,excavation was slight, bei l1Konly a few degrees, and not .s"Uchas to make the passage of the draw dangerous, the law did.llot impose upon the defendant the extreme measure of changing the direction of the draw-piers. Reasonable safety to navigation is what the,lawwas intended ,and when this purpose is .secured the law will not impose upon bl'idgeowners the e:;treme and ruinous expense of changing the direction of the piers, in ,ordel.' to make them conform literally anel exactly. to.. the curtents,whenever by qausesnot within their control Bomeislight variation ,from the original flow of the water is produced. It WaS. competent for the govermueut to authorize both of the imprQvements,-:-thebridge and the canal; aud if, before the bridge was bum, the canal was 9rdered to becoJ¥structedbythe government, it became the duty of the. bridge company to plan and build their bridge with.reference to the canal, since they must have known that the principal traffi,c of the 1,"iver would pass through it. But the bridge company were, in ,so doing, required tQ use only reasonable diligence and skill in forrning and executing their plans. They could not be required to foresee and anticipate the·efi'ect upon the current of the river of a factor not yet in existence; and if you find that the defendant used all reasonable care, skill, and diligence to ascerta.in the plans of the government officers with reference to the canal, and to conform to the same in the location and erection of the bridge, andif youfiudtheresult ,t<:> be that the piers of the bridge were made ,parallel, as' far as possible,with the currents of the river and the neceswith the further result that the passage qf the draw sities of the is reasonably safe, then nothing more could be required of the bridge company, negligence ca.nnotbeimputed.to them in that behalf. The defendant asks the court to instruct the jury that, "if the bridge was a lawful structure, built according to the limitations of the act of
congress, and that the War Ea:gle was run down against the defendant's bridge, and damaged the same by knocking out and sinking one of its spans, the verdict should be for the· defendant on its counter-claim." The court refuses to. give this instruction, becallse it excludes the proposition that the accident may have been purely fortuitous, and without any negligence whatever on the part of the plaintiff's servants in charge of the boat. In order to make the plaintiff liable, the element of negligence is indispensable. Again, the'defendant maintains that, "if there were two ways for the Wl'!-r Eagle to ha.ve gone through the west side of ths"pivot-pier,-one head on, and the' other by backing through,--'-and if ba.cking through was the safer way, under all circumstatices, surmundings, and conditions, then it was the duty of the officers in charge of the boat to have adopted the safer way, and the'failure to do so was negligence." This is denied by the court,because, although one way df accomplishing a given result may be safei' than another, both may be reasonably safe, and it maybe entirely consistent with the exercise of ordinary care and skill to adopt either way.' The pilot inchargeof the boat was nbt'required to exercise the highest :degree of 'care and skill,or even extraordinary care and skill. All that hisduiy demanded'was' that he shouldr 'use ordinary skill and care; and'the'jury must determine whether or not; in attempting to pass the he did, heading down the river, he came up to this requirement. ' r It is manifest that the principal and controlling'question in the case is whether or,not the piers were placed substantially parallel to the current of the river, and whether, if they-were not so placed, that fact caused the head Of the boat was caught and turned to the the eddy' Iowa shore. The jury is called upon to decide this question by the fair preponderance Of evidence, the burden of proof being upon the plaintiff. Now, the testimony upon this question is very conflicting; so conflicting indeed, that it cannot be harmonized. The jury may not, from this conflicting evidence, be able toi'each any satisfactory conclusion. The jury have the f,estimony of experts on both sides, apparently competent, and of numerous observers who watched the currents with reference to the piers, and noticed the course of the ice, drift-wood, etc., and saw how these floats strike the piers of the bridge. These witnesses give testimony diametrically opposed to each other, and ifthe jury find it a vain task to attempt to reconcile their evidence, or determine the preponder.ance, it will he necessary to resort to other well-established facts in the case to determine the question at issue. testimony is to Now, the whole scope and purpose of the show that, inconsequence of the Y<1ilure to comply with the requirements of 'the law of· congress, the bridge is a structure dangerous to navigation; that the passage Of the draw is perilous to boats; and that it cannot be p'ltSs'ed with reasonable safety. This is'nbt only the inference from, but th'edirect tendency of, the plaintiff's evidence. It is competent for the jury, in order to test the truth of the plaintiff's allegations and proofs 'in this regard, to consider the actual "facts of navigation at
the draw in question through the long period during which the bridge draw has been used. What is the best test of those machines and structures which are used in the practical arts? Is it not the actual experience of their use, rather than the opinion a.nd judgment of mere experts? If a 'railroad bridge has long borne its burden"and carried over passengers and freight in safety, do you not conc1ude,even against the !I,dverse judgment of experts, that it is a firm and solid structure? If a machine haslong worked well and duly performed its proper functions, machine because experts would yOI1"condemn it as a bad or should give their opinions that it could not possibly do good work? If a house should stand firm against storm and tempest, for a quarter of a century, would you tear it down in deference to the. judgment of some wise archjte,ctwho should declare that it was built upon false principles, and must, therefore, be an unsafe structure? In all such cases, would you not apply the test of experience, and goverri yourself by that test rather than by mere opinion? Now, apply that test to the structure before you. You have abundant evidence of the results of the of boats and other water-craft through the draw Of the bridge, from the time oflitsopening, in 1871, to the present time. is in evidence that steam-boats iand water-craft of various kinds, to' the number, in, the aggregate,of50,000 and more, have passed draw during the intervening period. It is in evidence, further, that very few accidents have happened in the passage of the draw; so few, indeed, as hardly to be worthmentionibg.. It is true that many, probably the most, of these boats, vessels,.rafts, etc., came through the canal,and many of them. doubtless, were small steamers; but the number has been so great, and the period ·of time so considerable, that I submit it to the jury to. say whether,. with all possible abatement, the test of practical use has. not been sufficient, and whether the number of accidents is any greater than might have been expected at any bridge, however well constructed. One pilot testified that he had passed the draw 500 times' in a single year, without accident; and although it may be that he was, inmost of passages, in charge of small steamers, yet, in view of their great riumber, the test cannot be set aside as worthless. It is not by the passage of large steamers alone that the safety of the draw may be tested, though it is beyond doubt that a very great number of large steamers have passed the draw, in the time mentioned, with perfect safety. The War Eagle herself has accomplished the passage safely for about 150 times. I therefore submit it to the jury to say whether or not it is probable that, if the bridge were faulty as claimed and represented, so great a number of boats and water-craft. through so long a time, would passage in safety, and whether or not the have been able to make accident to the War Eagle was nota casualty purely fortuitous and unavoidable. The jury may solve the questions in the case upon three different hy .. potheses depending upon the evidence: Firat. That the construction of the bridge was faulty, and not in compliance with the law, and that the accident occurred from this cause,
without fault or negligence in the navigation of the boat; If this view is sustained by the evidence, the verdict must be for the plaintiff. Secondly; That the bridge was well constructed, substantially according to lawjbut that the aceidentoccurred in consequence of the failure of the plaintiff's servants to use ordinary and reasonable care and skill in the management and navigation of the boat. If the jury shall reach this conclusion: from the evidence, the verdict must be for the defendant on its cross-Claim, for its loss in the destruction: of a spamof the bridge. Thirdly'n/nd lastly, -the jury may find, if the evidence in their view requires it, that the accident was without fault by any human agent; without negligence mthe structtlreof the bridge; and without any want of care and skill in the navigation, If the'jury so find, theu their conclusion must be that the accident was the result of causes purely physical, .that no human'agency was to blame for it,and that the injury was the result of a ca.sunltyofnavigation purely fortuitous and unavoidable. If the jUry reach this conClusion, they will find tWd verdicts,...,-one against the on its petition; andonEJ against the defendant on its. crossdemand.- .' . ., " ' , , . Of course, the jury will not faUto 'consider that accidents will some.. times unavoidably happen in the navigation of a great river :by the powerfulagericyof steam, propelling vast and somewhat-unwieldy machines; and when such, a navigation meets numerous bridges hi its way, however well, constrllcted, it would' be almost a miracle if accidents did not sometinieshrtppen, especially in seasons of extreme high wate!', in spite of all reasonable efforts for the safety of navigation. ,Bridgeaand boats alike must, under'such ciroumstances, sometimes suffer from such casualties; and, when theydo, the men who build for tbeirprofit structures 80 exposed to danger, or use vessels in such perilous service, must bear the consequences which they have good reason to foresee and anticipate.
'NoTE. . The jury found against the plainti:ff on its' claim, and .,againstthe defendant on its Plaintiff moved for a trial, which,af1;er a. bearing by t.be court, was refused. JUdgment on th,e verdict was, that de-; fendant recover all costs on the bearing of claim for damages, and plaintU;'l recover all hearing of counter-claim. . '
THE FLOWERGATE.· SLOAN
(District Oom't E. D. New York., April 7,18$7.)
The use of an eye-bolt. apparently sufficient for the purpose to whichit.iIJ applie<f, :butin:reality insufficieJ;lt solely because 0:1; I,l.ll!otent detect, _ entails J;lO liability for a personal injury caused by such defect: ..
, Libel for personal injury to a grain-trimmer while'engaged in. rigging the tackle preparatory to stowing a cargo of grain, occasioned by the