VAN ETTEN V.TOWN OF WESTPORT.
VAN ETTEN v. TOWN OF WESTPORT.
March 21, 1894.)
A steam barge approaching a drawbridge on a rising tide gave the customary signal when half to three-quarters of a mile away. Perceiving no movement to open the draw, she slowed down to about a mile an hour. Afterwards she kept stopping, backing, and going ahead, until, being from 75 to 150 feet from the draw, she sheered, became unmanageable, struck bottom on the :flats, and sank. The draw tender was absent, but the first selectman and town agent heard the signals. and attempted to open the draw, but did not get It started open until after the barge sheered. !JIeld., that the town, which maintaJned the bridge, was negligent, and therefore liable for the 10s8.
This was a libel by Ambrose Van Etten against the town of West· port to recover damages for the loss of a steam barge through the alleged negligence of the defendant in the opening of a drawbridge. Carpenter & Mosher and Samuel Park, for libelant. C. R. Ingersoll and Curtis Thompson, for defendant. TOWNSEND, District Judge. This is a libel in personam for damages alleged to have resulted from the negligence of defendant in the operation of the draw in a bridge across the Westport river in said town. The facts in regard to the assumption of the main· tenance and management of the bridge and draw by said town and its selectmen, and the questions of legal liability arising thereon, are the same as those already stated and considered in Greenwood v. Town of Westport, GO Fed. 560. The course of Westport river is about south. It is crossed by a lower drawbridge and by the upper drawbridge, where the damage hereinafter considered was sustained. The draw of this upper drawbridge swings around in the arc of a circle, on a center pier, and has two openings, each 59 feet wide. The channel through the east opening is from 6 t6 9 feet deep at high water, and is the only navigable one. On the morning of December 12, 1891, the steam barge Col. W. C. Squires, 97 feet long, 171- feet wide, and then drawing about 6 feet and 8 inches, loaded with coal consigned to Taylor's dock, some 250 feet above said drawbridge, with an experienced pilot (Allen) in charge, and having her master, Capt. Moys, who was a part owner, a licensed engineer, Ross Knapp, and a deck hand, Edward Staats, also on board, started on her course up said Westport river, and, after having passed through the lower drawbridge, proceeded to· wards the upper drawbridge, with the tide still rising, and ample water to pass through said draw to her destination. When she was between a half and three quarters of a mile below said bridge she commenced to give the customary signals, by whistle, to open the draw, and kept repeating them until she was close up to the drawbridge. She had a schooner in tow part of the way, and was then going at the rate of perhaps three miles an hour. When she got within half a mile of the draw, as the captain saw no movement
made to open the bridge, he slackened her speed down to a rate of about a mile an hour. Afterwards, the draw being· still closed. she and for some tinut, waiting for It to be opened. Finally, when wIthm from 75 to 11'>0 feet of the bridge, she commenced to sheer off'across the flats towards the west end of the draw, and, after she had thus changed her course, the persons on the bridge began to open the draw. The Squires ran up close under side o(:tJIe bottom on the flats, and sank'" An nnSuccessful. attempt wasmad,e to back her. off, and antug trletJ,to hllul,b.er off, but it only succeeded in swinging her bow around. for a feW-feet. . .The drawtend,erwasnot at the bridge' prior to the accident. but including; .. ;tJie first selectman and town agent, Wheeler, heard the signals, 'and went on to the bridge when the barge was from. one-quarter to one-half of a mile away, and, after Jew m.ihtitesto1etthepeople on the bridge get aCr0r411,.thel commenced open the draw. It was notulittl,aftel.' the barge had sheered as afo1'esaid,and was 50 or 100 feet off, that the;}f,$Ucceedeq.in getting the east end of the draw open some 4 to 12 feet,jJlSt be1'.01le the Squires struck as aforesaid. At'no time was the draw open a sufficient distance for the Squires to have 'Pl:lsseA: ,tbrPugh · ,'Xb.ftP,the, barge slowed down, backed, or stopped, is not admitted by,tl;!.e, defendant's. iwitnesses,who. were on the bridge; but, as they wem ina position to jUdge with:anycertainty, and as they admit thllt ,she'. Ulight have done .sow-ithout. their knowledge; I have followed the usual rule in such cases, and adopted the statements of :thercaptAin, pilot, ,and engineer on this point. The Avon, 22 Fed. Fed.·,810; TheOolumbia, 29 Fed. 718; The Hope, 4 Fed. 89; Cl',he Wiman, 20 Fed·. 245; The Alexander Folsom, 3,Q.C.A.165" 52 Fed. 411; TbeHavana, 54 Fed. 413; as stated in its answet, was that the ,draw WAA openaneJ the way: dear for the barge tp pass through. This on the trial, and an amendment permitted, alleging, in. substance, that the draw was being opened, and would have been'oPOO for tbe barge to go through if she had kept on per . The . defense further prQeeeded upon the theory that there unreasonable delay; that the barge did not stop or back;, · the draw would have been open for the libelant to pass through if he had kept in the channel, but that "this barge was .either de,uberately,. or so unskillfully,handled as to be driven llground." A further theory that the engine did not work properly wAAdisproved by the testimony of defendant's witnesses, and was abandoned on the trial. No positive evidence was introduced to support the claim 'of negligent handling, except that of George W. Kirk, who testifiedthat,standing in the middle of the bridge when the'boa;t was 200 feet away, in the channel, and coming towards him, he sa,w,tb.e pilot turn the ,wheel to staxboard, and saw the top of the ,rudde;r, ;and tl:).at.it was "hard aport." This statement is not supported by the evidence of 8Jly of the other persons on, the bridge, and Capt. Moys,bY his testimony, and sketch of his boat and rudder, has
VAN ETTEN 11. TOWN OF WESTPORT.
satisfied me that, with the boat loaded, and drawing 6 feet 8 inches of water, her rudder must have been entirely under water. Furthermore, the witness could not have seen the rudder from the center of the bridge, with the boat coming towards him in the channel. One other witness thinks if the boat had been handled right, she would have stayed in the channel, and gone through the bridge, but suggests no other reason for his belief. The rest of the witnesses agree that they do not know, and cannot explain, why the barge should have run up on the bank, instead of keeping in the channel. The witnesses for libelant claim that from the time the barge slowed down at Wright's Island, nearly half a mile below the bridge, until she went aground, three-quarters of an hour elapsed; thatdurlng this time she was slowing, stopping, or backing, to try to keep afloat in the channel until the bridge should be open, and that, when they got up within 25 or 50 feet of the draw, having proceeded as slowly as possible, expecting every moment that the drawbridge would be opened, they found they were going to run into the draw, and so tried to back off, but that, either by reason of the wheel striking the mud and sucking bottom, or because of the fresh water running down and meeting the tide, or because they could not get stern steerage way after reversing the engine, the captain was unable to keep the barge in the channel, and she became unmanageable, and stuck on the mud, and her bow sheered off to the westward. According to the testimony of several of defendant's witnesses, the barge was from 140 to 190 feet from the bridge, and comirg straight along slowly, without backing or stopping, and in that distance, as would appear from the testimony of defendant's witness McKenna, in about a minute, she sheered four points. The captain and pilot both testify that, if the wheel had been put hard to starboard, as testified, she could not possibly have made such a sheer, and give their reasons therefor. In the absence of expert testimony to the contrary, I think this evidence should have some weight upon the question of comparative probabilities. On the other hand, defendant strenuously claims that, if the barge sheered because the engine was reversed, she would have stopped, and not continued to run up to the bridge. It seems to me that this claim has considerable force upon the question of probabilities. From the best consideration of all the evidence and the surrounding circumstances, I conclude that the total lack of proof to support the claim that the vessel was steered to port, or of any reason why it should have been so steered, makes it seem improbable that said claim is correct. The admitted facts that the barge, going slowly, had come almost up to the bridge, and that, as testified to by one of the defendant's witnesses, "they commenced to open the draw when she had changed her course, and was going across, towards the west end of the draw," and had got about a quarter of the way across the flats, coupled with the fact that when she ran aground her stem was close to the bridge, if it did not strike it, seem to show that either to steer to port or reverse the engine were the only things the libelant could have done. The draw was still closed. He could not tell, if he kept on, that it would be open
alleged in amended If it remained he must run into it, and damage it and his barge. While it seems to me that the testimony of libelant's witnesses as' to the cause of the disaster is, true, yet I am of the opinion that, even if the libelant had steered to port, under these circumstances, it would n:ot hav:eeonstituted negligence onhis part. See. cases cited in Green'J'own of Westport, supra. "If the situation was as defendants ,cla,i;lJl, the Thingvalla was not in fault for porting. * * * Lookiug:atthe situation after the event, it may be apparent that such ,a of, cOUl'Se would have avoided the collision; but the I'hingyaJJA's.navigation, must be judged by the knowledge she had, "r ougb!: to, have had, at the time." Judge Lacombe, in The Thing· valla, 1 C·. C. A. 87,48 Fed. 764. Whether the delay in opening the· bridge .was unreasonable does not seem to be a mere question of time, but one of conditions. Under the conditions stated of tide, signals blown, and peril and damage caused by the delay, the abo sence ()f·.a bridge tender, the interval before commencing to attempt to ()pen the draw, and the final failure to open it until such opening was manifestly too late to serve any useful purpese, the de· lay seems unreasonable and inexcusable. It is admitted that the town had ample notice when the barge was at least half a mile away, aIid that, through its first selectman and his volunteers, it had ample time to open the draw seasonably after they first came on to tbe, bridge. Assuming the legal obligation of the town, it was its duty to have the bridge tender there, or, in his absence, it was the duty of the first selectman and town agent, who was there presumablyrepresenting the authority of the town, to see that the bridge wa,e opened before the conditions already considered developed the. disaster, and caused the damage on account of which these proceediugsare brought. Furthermore, the captain testified that, if they had notified him of their inability to seasonably open the draw before he got close up to the bridge, he could have stopped and held the boat. No notice was given, but, on the contrary, the libelant had every reason to suppose, from the presence of the town agent and other persons on the bridge, and from their movements, that the draw would be open when he came up to it. I have not discussed the claim of libelant that the draw was never opened· at all, because it is admitted that, if opened, it was closed immediately afterwards. I have not discussed the fact that, when the boat got closeup to the bridge, the captain took the wheel, because it does not appear that this had anything to do with the disaster. The conclusions reached ,render it unnecessary to consider the question of compliance with the statutory requirements concerning licenses. 'J'he evidence clearly shows that the disaster could not have been caUsed by the violation of said statute. The Pennsylvania, 19 Wall. 125; The Bolivia, 1 C.C. A. 221, 49 Fed. 169. In view of the conclusions of law stated in the case of Greenwood v. Town of Westport, I am of the opinion that the defendant is liable. The libel. may be amended in conformity with the facts herein found. Let a decree be entered for libelant, and let the usual refer· ence be had to a commissioner to assess damages.
to pass thl,'o'Pgh,
& CO. v. BUSHNELL
PARK BROS. & CO.· Limited, v. BUSHNELL.
(Circuit Court of Appeals, Second Circult. No. 69.
March 12, 1894.)
TRIAL-ExCEPTIONS TO CHARGE-ApPEAL.
In the federal courts, exceptions to the charge wlIl not be conslderea on appeal, unless they are definite, and are publicly taken before the jury retires. In an action for wrongful discharge, where it appears that the plaintiff was engaged for a long term of years as superintendent of a large and Important business, and was constantly obllged to represent the defendant in different states. and to attend with promptness, resoluteness, and good judgment to large pecuniary interests, it is proper to charge the jury that what would justify discharge of a mere clerk or workman might not justify the discharge of OIle like the plaintiff, and that where a contract has been substantially performed as to time and its most rial parts the employer has no right to dismiss an employe for mere disobedience of general orders of a slight character, which involve no serious consequences or danger to the business, unless such disobedience is perverse or unreasonable. An instruction, leaving to the consideration of the jury the question whether plaintiff's disobedience of his employer's definite instructions was material or injurious to the employer, is inconsistent with an instruction that violation of definite instructions is sufficient ground of discharge; but such inconsistency is harmless error where the evidence clearly shows that no definite instructions wp.re violated.
MASTER AND SERVANT-RIGHT TO DISCHARGE-INSTRUCTIONS.
3. SAME-HARMLESS ERROR.
An instruction that, if an employe is competent to discharge his duties. his dismissal is unjustifiable, is not misleading, as withdrawing the jury's attention from other causes for dismissal, where they are also instructed to consider all the evidence as to ill health, absence from business, and fallure to obey special instructions; and that if, for any reason, the dismissal was justifiable, the employer is not estopped from setting up such ground of discharge by the fact that the dismissal was not expressly based upon it. An employer telegraphed to his agent to accept an offer to buy 2,000 tons of steel at a certain price, but to give no option for a further amount. The agent, who had general charge of the sales, found that the purchaser had made no such offer, and thereupon agreed to sell him 2,400 tons at the stated price. Held, that he had not disobeyed orders, since the telegram did not limit the amount to be sold.
SAME-DISOBEDIENCE TO ORI)ERS-EvIDENCE.
In Errcrto the Circuit Court of the United States for the Southern District of New York. Action by Robert G. Bushnell against Park Bros. & Co., Limited. Plaintiff obtained judgment. Defendant brings error. Joseph H. Choate, for plaintiff in error. John E. Parsons, for defendant in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. This is an action at law, which was originally brought in the supreme court of the state of New York, by Robert G. Bushnell against Park Bros. & Co., Limited, and,