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P. P. Carroll and J. C. McFadden, for libelant.
HANFORD, District Judge. The evidence shows that the libelant, a traveling salesman, went on board of the Wasco at New Whatcom the morning of December 30, 1891. The steamer was then running as a carrier of passengers and freight, on the route from Seattle to New Whatcom via Anacortes and other intermediate places, and was about to depart on her regular trip from New Whatcom via said intermediate places to Seattle. The libelant's intention was to visit Samish, Anacortes, and La Conner during his trip, and, upon going on board, inquired if he could be landed at Samish, and was informed that Samish was off the steamer's route, and that she would go there only under a special arrangement whereby the additional cost to her would be paid. He declined to pay extra fare, but did not change his purpose of taking passage on said trip. Prepayment of fare or the purchase of a passage ticket was not exacted, it being the custom for the purser to collect fare from those on board during the time of making passages. From these facts I conclude that the libelant, from the time of going on board the steamer, was a passenger, and entitled to hold the steamer responsible for the due fulfillment of its obligations as a common carrier of passengers for hire. The steamer has a stairway leading from the forward part of her main deck to her cabin deck, and, immediately after going on board, the libelant was upon said stairway, going either from the main deck to the cabin or in the opposite direction, and while he was there the steamer's masthead light, a lantern weighing between 9 and 10 pounds, was being hoisted to its position on the mast, and, by the breaking of the halyard, it fell, striking the libelant on the scapula of his left shoulder. The blow caused severe pain, and produced a contused wound, in consequence of which the libelant was for a time disabled from attending to his business, and incurred expense for medical treatment. The injury, however, was not dangerous in character, nor permanent. The testimony fails to disclose the cause of the accident, but it could not have happened if the halyard and appliances for suspending the light had been sound, of sufficient strength and proper construction, and there had been no negligence on the part of the officers and men employed on the steamer in the performance of their duties in connection with said light.
A carrier of passengers is, in law, bound to exercise a high degree of care for the safety of travelers, and any failure to provide sound equipments and appliances of sufficient strength and proper construction, or to exercise due care in the use thereof, is such negligence as will entitle a passenger who may suffer an injury in consequence thereof to damages; and an injury to a passenger on board a passenger ship, happening in consequence of negligence on the part of the owner, officers, or mariners of the vessel, is both a breach of the contract for transportation, and a tort, entitling the injured passenger to compensation and to a lien therefor upon the vessel. The City of Panama, 101 U. S. 462. The question in the case most difficult to decide is as to the amount which will be fair compensation to the
libelant. He complains of severe and protracted suffering, and pretends that his injury is permanent. The only evidence in the case to corroborate the libelant's testimony is that of his wife, physicians employed by him, and a few of his friends, whose testimony, however, is in most respects a mere repetition of his own complainings and statements regarding his sufferings and injuries, with the addition of their opinions as to the genuineness and truth of the statements which he has made to them of his suffering and consequent disability to work since the happening of the injury. His attempt has been to show to the court that in consequence of the injury his body is deformed, so that his shoulders are not of the same height; that he has lost entirely the use of his left arm and hand; that he constantly suffers severe pain in his left shoulder and chest; that his lungs are affected; and that he is so entirely disabled as to be unable to remove his coat or change his clothing without assistance. In my opinion, this attempt is a failure. There are many indications that the case has been overdone, and that the libelant is trying to magnify a comparatively trifling injury into a serious and permanent disability, for the purpose of unjustly extorting a large sum as his damages. The evidence was taken six months after the happening of the injury, and if the libelant had during that time been wholly deprived of the use of his arm, as he pretends, the fact could be proved by more reliable evidence than his own statements. The softening of the muscles and wasting of the arm itself would, if the facts are as the libelant represents, give physical and positive evidence of such facts. The physical appearances, as shown by the testimony of three reputable physicians, who examined the libelant in the month of July, are as follows: There is but a slight difference in the measurements of the libelant's two arms. The muscles of the left arm are firm, having no appearance of atrophy. That the libelant can raise, extend, and bend his left arm, and make all the movements of which a left arm in its normal condition is ordinarily capable. His right and left lungs are equally sound, and there is no indication of any localized ailment about his shoulder, spine, or chest, and no apparent cause or necessity for the drooping position in which he carries his left shoulder, as testified to by his witnesses. Two of the physicians who examined him testified that, in their opinion, the libelant has at times since the injury feigned 'pains and disabilities, in the presence of others, for the mere purpose of manufacturing evidence to enhance his damages in this case, and in that opinion I concur. It is now nearly six months since the evidence was taken, and a physical examination of the libelant at this time would go far towards confirming or contradicting his assertions in regard to his injuries and disabilities made in July; and if he can show, by submitting to such examination, that my opinion is erroneous, an opportunity will be afforded him for so doing, before I sign the decree. As the facts now appear from the evidence, I consider that the sum of $150 will reasonably and sufficiently compensate the libelant for the injury actually sustained, and award him that sum, with
On the part of the claimants, evidence was introduced to prove that the libelant caused the steamer to be arrested at the Whatcom end of
her route, instead of at Seattle, where her owners reside, after business hours on Saturday evening, whereby she was detained over Sunday; that by said detention she sustained a considerable loss; and that, in making the arrest at said time and place, the process of the court was used to unnecessarily and vexatiously interfere with the business of the vessel. On this ground it is urged that no damages should be awarded to the libelant. This claim I cannot allow, for the reason that there is no foundation in the pleadings to support a cross demand or set-off; and I will say further that the authorities seem to have settled this to be the rule: that, even with proper pleadings, damages will not be awarded for an injury to the business of a vessel in consequence of a suit in rem, without proof of malice or bad faith. Henry, Adm. Jur. & Proc. p. 337; The Adolph, 5 Fed. Rep. 114; Kemp v. Brown, 43 Fed. Rep. 391; The Alex Gibson, 44 Fed. Rep. 374.
OREGON CITY TRANSP. CO. v. COLUMBIA ST. BRIDGE CO.
1. CONSTITUTIONAL LAW-NAVIGABLE WATERS-POWERS OF STATES. In the absence of legislation by congress a state may authorize the erection of a bridge of any character across a navigable water within its borders, subject to the power of congress to abate or regulate the same. Bridge Co. v. Hatch, 8 Sup. Ct. Rep. 811, 125 U. S. 1, followed.
2. ADMIRALTY JURISDICTION - NAVIGABLE RIVERS UNAUTHORIZED OBSTRUCTION-COLLISION.
The owner of a vessel injured by a collision with an unauthorized obstruction in a navigable water may maintain a suit in personam in admiralty to recover damages from the person who placed or maintains such obstruction therein; and a bridge built under the sanction of an act of the legislature, in so far as it fails to comply with the same, is such an unauthorized obstruction, but in such suit it must be alleged and proved that such obstruction was the cause of the collision.
8. NAVIGABLE WATERS UNAUTHORIZED OBSTRUCTIONS
- CRIMINAL PROSECU
The act of congress of September 19, 1890, (26 St. 453,) only gives this court jurisdiction of a criminal action against the owner of a bridge to recover a fine of $5,000 at the suit of the district attorney, when the secretary of war shall find that such bridge as constructed or maintained is an unreasonable obstruction to free navigation of the water which it crosses, and when said owner shall fail or neglect to obey the order of the secretary thereabout.
(Syllabus by the Court.)
In Admiralty. Libel in personam for collision of a steamboat with a bridge. On exceptions to the libel. Sustained.
Zera Snow, for libelant.
H. H. Northup, for respondent.
DEADY, District Judge. The Oregon City Transportation Company, a corporation formed under the laws of Oregon, brings this suit against the Columbia Street Bridge Company, a corporation formed under the same laws, to recover damages for an injury sus
tained by its steamboat Altona while passing through the draw of said company's bridge across the Wallamet river.
The libel alleges that the bridge in question was built across the Wallamet from the foot of Madison street, in Portland, to the east side of the river, professedly in pursuance of an act of the legislature of Oregon, but so negligently and improperly constructed "as to injuriously impede and obstruct the navigation" thereof; and that on the morning of July 17th, while said steamboat was passing through the draw of said bridge, a collision occurred between them, whereby the boat was greatly injured and damaged.
The respondent excepts to those portions of the amended libel which charge that the bridge was so negligently constructed and maintained as to greatly impede the navigation of the river, and endangering vessels plying thereon, and with less width of draw than provided for by the act under which it is claimed to have been constructed, without alleging that the collision with said boat was caused thereby.
In the absence of congressional legislation on the subject, the state may authorize the erection of such a bridge across any navigable water therein, as it may see proper, subject to the power of congress to abate or regulate the same. Bridge Co. v. Hatch, 125 U. S. 1, 8
Sup. Ct. Rep. 811.
By section 4 of the act of September 19, 1890, (26 St. 453,) it is made the duty of the secretary of war, whenever he has good reason to believe that any bridge then or thereafter constructed "over any navigable water of the United States is an unreasonable obstruction to the free navigation of said water," to give notice to the owner of said bridge to alter the same so as to render the navigation through or under it free, easy, and unobstructed; and in giving such notice he shall specify the changes required to be made, and shall prescribe in each case a reasonable time in which to make them. If, at the end of such time, the alteration has not been made, the secretary shall forthwith give notice to the district attorney for the district in which such bridge is situated, to the end that criminal proceedings may be taken against the party in default.
Section 5 of the same act provides that, if the owner or controller of said bridge shall willfully fail or refuse to comply with the lawful order of the secretary, he shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined not exceeding $5,000; and every month thereafter that such person shall remain in default in respect to the removal or alteration of said bridge shall be deemed a new offense, and subject to the same penalty.
The portions of this libel covered by the exceptions, if not the whole of it, are framed upon the theory that this court has jurisdiction of an action against the owner of a bridge by a private person, because it has not been constructed or maintained according to the act of the legislature permitting the same, even where such private person has no special grievance to complain of.
But the jurisdiction of this court is limited to the case provided for in the act of congress, and that is of a criminal action to recover a fine provided the secretary of war has found the bridge to be an
unreasonable obstruction to the free navigation of the river which it crosses; and in such case it has such jurisdiction whether the bridge is constructed or maintained according to the act of the legis lature or not.
The action of the national government, acting through the secretary of war, is the final test of the sufficiency or insufficiency of a bridge across a navigable water of the United States, and not the act of the legislature permitting its construction.
But a suit in personam in admiralty will lie by the owner of a vessel injured by a collision with an unauthorized obstruction placed in a navigable water. Atlee v. Packet Co., 21 Wall. 389.
A bridge permitted by an act of the legislature, but not constructed in accordance with it, is so far an unauthorized structure. The owner of a vessel injured by such a structure may maintain a suit against the owner of the bridge for damages, but he must allege and prove that the collision was caused by the defective construction or maintenance of the bridge in some specified particular.
In this case the libel does allege that the draw is less in width than that authorized by the legislature, but it fails to allege that such lack of width was the cause of the collision.
The exceptions are sustained, including the first two, which are for mere redundance.
In re SUTHERLAND.
(District Court, D. Oregon. December 17, 1892.)
A seaman who signs articles for a voyage, and fails to render himself on board in due season, is a deserter.
Syllabus by the Court.)
On Habeas Corpus.
Alfred F. Sears, Jr., for petitioner.
DEADY, District Judge. On December 7, 1892, George Sutherland duly shipped at San Francisco, before the British consul, for a voyage on the British bark Invergarry, to a port of discharge in the United Kingdom. At the time, the vessel was lying at Astoria, Or., loaded and ready to clear for Queenstown. At the time of signing the articles, Sutherland received $40 advance on his wages, and at once proceeded to Astoria, on the steamship Queen, at the expense of the bark, where he arrived on the morning of the 9th.
There he refused and neglected to join the vessel, being thereto persuaded by the petitioner, Peter Grant, and his associates, certain boarding-house keepers at Astoria.
The master of the Invergarry, Mr. James Crombie, then instituted proceedings under a supposed treaty between Great Britain and the United States, concerning deserters from merchant vessels, signed at Washington on June 3, 1892, to have said Sutherland returned to the