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with authority to call for help, who could and would oversee her fastenings, and make such alterations and adjustments as the changing conditions resulting from the rising river should from time to time demand. The answer of the Reis set up "inevitable accident,” alleging that her moorings when she was tied up were proper and sufficient under all the conditions that might then have been reasonably anticipated, that she was provided with a proper and suitable shipkeeper, and that she broke away because of an unprecedented flood, which put her fastenings under a strain which was not anticipated and could not be provided against. The court below rendered a decree in favor of the libelants, but placed it upon the ground that the Reis and her owners were at fault in not manipulating her moorings and in not loosening or tightening her lines and cables in a proper and seamanlike manner during the critical hours of the rising flood immediately · preceding the accident.
As to the character of the original moorings, the court expressed the view that there was great conflict in the testimony; but, giving full weight to it all, it would appear that the fastenings were such as would satisfy a prudent navigator that they were sufficient, if kept in proper adjustment, to repel the force of any flood reasonably to be apprehended. The court did not go further into this confiict, placing its opinion, as we have indicated, upon the neglect of the Reis to keep the fastenings in the proper adjustment during the critical period of the flood. The Reis was 436 feet long over all, 50 feet beam, and 28 feet depth. She came to the River Furnace dock laden with about 6,500 tons of iron ore, and before she broke away about 1,800 tons had been removed, so that at the time she went adrift she had about 4,800 tons of ore on board. Her master and crew left her about December 12, 1903, leaving her in charge of one Coyne as shipkeeper. Coyne was a young man about 20 years old. · He had sailed about 5 years as an oiler, watchman, and second cook. The fastenings which held the Reis to the dock were described by her captain, and as stated in the opinion of the court below they were as follows:
"An 8-inch manila line, leading ahead some 30 feet from her forward starboard tow chock, to a pile on the dock. The first fastening abaft of this was six parts of a 6-inch manila line, leading from the breast chock in the windlass room to the dock timbers on the dock; three of these parts leading quartering a head, and three parts about 45 degrees forward of abeam. From her forward deck engine, a short distance abaft of her forward house, she had a 6-inch steel cable leading ahead and one astern; also three parts of a 6-inch manila line leading a head. From her amidships timberhead, abreast of lier amidships deck engine, she had a 3-inch wire cable leading a head. From her after derk engine, she had a 7-inch steel cable leading ahead, and another one astern: and from the same chock she had two parts of a 6-inch line leading ahead. From the after chock she had three parts of a 6-inch line, two leading ahead and one leading astern. These lines were all made fast to dock timbers and piles on the dock; and, where bights were put out, these were fastened around dock timbers with toggles. The lines had various leads, some short and some long; but it is impossible, from the testimony, to give their definite length."
There are some discrepancies between this statement and the fastenings given in the answers; the principal one, it seems to us, growing out of the different location of the vessel. According to the captain, when the vessel was first tied up, she was against the dock, both for
ft, but away from the dock amidships some 10 feet, because in the dock. On Thursday, before she broke away, she was ly against the dock aft, but her straight side forward was i the dock from 8 to 10 or 12 feet. It was a matter of doubt t caused this, whether a shoal place near the dock or the presome obstruction. At any rate, after the rise came Thursday e vessel cleared the obstruction, whatever it was, and, before e away, came up close so she was against the dock forward. ears from the testimony that there was an unusual covering and ice, with cold and freezing weather, up to January 19th, ne temperature arose to 40 degrees above. It began to rain and thaw from that time till the 22d. The river began to rise Wednesday night. The ice broke up, and the snow melted appeared Wednesday. During Thursday the water arose rapntil by 4 or 5 o'clock that afternoon, it had arisen to a height - 3 feet at the River Furnace dock, where the Reis lay. By this he press had given information of the threatening conditions, and precautions were being taken by those in charge of vessels moored
river. An examination of the fastenings of the Reis was made veral masters of what is called the "Corrigan Fleet," some of which lose below, and they testified that in their opinion the fastenings
sufficient, in view of the conditions then existing and to be exed. It appears that there was a so-called shore captain of the Reis, o lived aboard another vessel some distance away. He came to see Reis on Wednesday, two days before she broke away. He satishimself that she was all right, went back to his comfortable quarters, 1 stayed there until he heard that the Reis and her victims had ought up against the viaduct bridge. So that the responsibility for ndling the Reis during Thursday night, when the flood was really rested upon the shipkeeper, Coyne. Coyne was on board with a iend of his, who was not a sailor man, so the entire work in the mangement of the fastenings was left to Coyne.
Coyne testified that his attention to the rise in the river was first called igy the strain upon the lines, which he noticed Thursday night, some cime between 9 and 12 o'clock. The vessel then came up forward closer to the dock than she had been. Coyne then went back and found the strain on the aft breast line; “more strain on that than the others," so eased that off a little. That was the first line he surged. The line was made fast to the timberheads on the starboard side. He slacked it probably some inches. It might have been less than a foot; it might have been more. He could not say. This was probably between 10 and 12 o'clock at night. The next thing he did was to slack the cable amidships leading ahead. - He “slacked that wire next.” He took a couple of turns off, and slacked it away a little. He took the turns off the timberheads. After he slacked the cables, he did not do anything for a couple of hours. After midnight he went forward and slacked away the 8-inch line. That was after 1 or 2 o'clock in the morning. He probably slacked that 6 or 8 inches. Then he found that the lines were all about on an equal strain as near as possible, and he went back to get something to eat. This was the extent of the manipu
lation of the fastenings by Coyne. When the Reis broke away, no dock timber or pile, and no part of the dock, broke or gave way, and no timberhead or other fastening on the Reis broke or gave way, but the lines and the cables on the Reis parted. It appears that as the water rose the forward part of the Reis went in tight against the dock. As a result the stern was forced out, the strain upon the lines aft became so great that they parted, the stern swung out into the river, and then practically immediately the boat went adrift.
But it is contended that since the shipkeeper was as good a man as is usually employed in that position, and since he did all he could, and nevertheless the boat went adrift, it was not his fault, or that of the owners, and must be charged up to inevitable accident. If we believed that under the circumstances, the owners ought not to have anticipated any difficulty in manipulating the fastenings of this vessel which Coyne would not be able to cope with, then we should concede the strength of the argument. But this was not the ordinary case. It does appear in the testimony that usually one shipkeeper alone would be employed for a vessel, and sometimes, not even one. Not infrequently one man would take care of a number of vessels. But these were all vessels which had been unloaded, and were tied up securely, so that it was not necessary to do more than guard them against thieves, and give warning of any unexpected conditions requiring additional aid to care for the vessel. In the present case, however, three-fourths of the cargo was still aboard. The vessel was tied up with ropes and cables. At first she was against the dock both forward and aft. Later, at the time the flood began, her position for some reason had been shifted, and she was from 8 to 12 feet away from the dock forward. She was an unusually large vessel, carrying a heavy cargo, that must have put an enormous strain upon her fastenings. Under these circumstances, ordinary care required the exercise of constant vigilance in order to keep the moorings properly adjusted and the strains equalized. The heavy current tended to alter the position of the vessel, and the strains thus caused were heightened and complicated by those due to the rise in the water. The weight of the testimony was to the effect that under the existing conditions one man could not handle the fastenings of the Reis. It required five or six. If it required five or six, then it was the duty of the Reis and her owners to provide that many. Sufficient warning was given, and there was no justification for running the risk of allowing a large vessel like this to run amuck where 50 or more were safely moored, yet liable to be cut down and sunk in case of disaster.
This case involves no new doctrine. The rule applicable is stated in The Louisiana, 3 Wall. 164, 18 L. Ed. 85, as follows:
“The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major which human skill or precaution and a proper display of nautical skill could not have prevented."
Whether the moorings of the Reis were originally sufficient or not, they certainly ceased to be so when the high water came, and there was no one on board who could and did adjust them so as to relieve them from the unusual and heavy strains to which they were then cted. The other shipkeepers either moored their vessels better, ey knew better how to care for their fastenings under a strain; of the 50 there, the Reis was the only one that broke loose and adrift. We think the fault was with the Reis. If she had been
secure, she could have been kept secure by proper attention. was neglected at a critical time, with the usual result. le judgments are affirmed.
MEMPHIS CONSOL, GAS & ELECTRIC CO. 7. BELL.
Plaintiff's intestate, who was a lineman in the employ of a telegraph company, while stringing wire on a pole, received a severe electric shock which caused him to fall, resulting in his death. The pole also carried telephone wires, one of which was grounded, and two bigh current electric wires of defendant. These wires were placed next the pole on each side, about 18 inches apart, and one was spliced near the pole, and at such splice the insulating tape had worn or burned away, leaving the wire exposed, but the absence of insulation was not noticeable without close inspection. The deceased was an experienced lineman, and was familiar with the pole and the wires thereon. No one saw the accident, but there was evidence tending to show that the shoulder of deceased came in contact with the exposed part of the electric light wire while his foot was touching the grounded telephone wire which was some five feet below. Held that, in view of the fact that defendant was required to insulate its wires and attempted to do so, the question of its negligence in placing the wires so near together, and in failing to properly inspect the same so as to keep the insulation in a reasonably safe condition, where it was known that linemen were liable to come in contact with them, was for the jury, as also the question of the contributory negligence of the deceased; there being no evidence that he knew the wire was not properly insulated, and did not rely on its being so insulated, as he had reasonable grounds to do.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Electricity, 88 7-11.]
In Error to the Circuit Court of the United States for the Western
RICHARDS, Circuit Judge. This was a suit to recover damages for personal injuries resulting in the death of the plaintiff's intestate, D. L. Brooks, a lineman in the employ of the Western Union Telegraph Company at Memphis. This company and the Cumberland Telephone & Telegraph Company were originally joined as codefendants, but during the first trial the suit was dismissed as to them.
The original declaration contained a general charge of negligence against all three companies, and in addition a charge that the present defendant, the Memphis Consolidated Gas & Electric Company, had negligently failed to properly insulate its wires where it was known the plaintiff's intestate and other linemen of the Western Union Telegraph Company were compelled to work, and that it negligently failed to inspect its wires so as to keep them in a reasonably safe condition. The case was twice tried, and during the second trial the plaintiff was permitted to amend his declaration by alleging that the defendant negligently failed to properly construct its wires upon the pole from which the plaintiff's intestate fell, and placed its high tension wires too close together, “the said negligent construction and maintenance consisting in placing said high tension wires eighteen inches apart.” As already indicated, the case has been twice tried, the court setting aside the first verdict, because not satisfied the plaintiff was entitled to recover, and sustaining the second, although still indicating the impression that it should have withdrawn the case from the jury. In other words, the court was unable, after sitting through two trials, to satisfy itself upon the point whether the case was or was not one for the jury. The court indicates, however, in its final word that it is disposed to think that in this circuit perhaps a more stringent rule than obtains elsewhere has been established with respect to companies using dangerous currents of electricity upon wires strung in the streets.
It is now contended that the court should have directed a verdict for the defendant on the ground that the testimony not only failed to sustain the charge of negligence, but made out a clear case of contributory negligence. On August 3, 1905, D. L. Brooks was employed by the Western Union Telegraph Company. He was an experienced lineman, having been so engaged for several years, and was familiar with the pole on the corner of Main and Calhoun streets, in Memphis, on which were strung not only the telegraph wires of the Western Union Telegraph Company, but also the telephone wires of the Cumberland Telephone & Telegraph Company, and, on the lower crossarm, the electric light wires of the defendant, the Memphis Consolidated Gas & Electric Company. The pole stood between two inside parallel electric light wires of the electric company, located about 18 inches apart. About four feet below the crossarm which carried the electric light wires was a messenger wire of the Cumberland Telephone & Telegraph Company, which was “grounded," and this fact was known to Brooks. The inside electric light wire west of the pole was fastened together by a splice at a point about 18 inches north of and perpendicular to the crossarm. The distance from this joint in the electric light wire to the nearest point of the messenger wire leading out from the pole on its west was about five feet. On the day mentioned Brooks was ordered to string some wires for the Western Union Telegraph Company on this pole. While engaged in this work, he received a severe shock of electricity and fell from the pole to the pavement, receiving injuries from which he died within a few hours. No witness saw him fall. An examination of his person showed that he had been burned in two places, on the left foot and right shoulder. These are the points of his body which would naturally have come in contact--the first with the grounded messenger wire, and the second with the electric light wire at the point where it was spliced. An