Casement v. Brown

Action by Samuel S. Brown and Harry Brown, partners as W. H. Brown's Sons, against J. S.C.asement & Co., for negligence. There was judgment for plaintiffs, and defendants bring error. Affirmed.

Statement by Mr. Justice BREWER: This was an action to recover the value of three barges of coal, lost, as claimed, through the negligence of the defendants. The case was commenced in the court of common pleas of Scioto county, Ohio, and removed to the circuit court of the United States for the southern district of Ohio. There it was tried by the court without a jury. Findings of fact were made, and from those findings the conclusion was reached that the defendants were guilty of negligence, whereupon judgment was entered in favor of the plaintiffs for the amount of the loss.

These facts appeared in the findings: Early in the year of 1882 two railroad corporations, one an Ohio and the other a West Virginia corporation, obtained proper authority from those states and from the United States government for the construction of a railroad bridge across the Ohio river, opposite the village of Point Pleasant, in West Virginia. The plan of the bridge and the number and size of the stone piers were submitted to the proper officers of the United States government, and approved, and the bridge and piers were duly constructed as authorized by such officers.

'There were six stone piers provided and built for the support of said bridge, one of which stood on top of the bluff bank of the river on the West Virginia side, another on top of the bluff bank on the Ohio side, and the other four between said banks of the river. Said four piers between the banks are known as 'A,' 'B,' 'C,' and 'D.' Said pier 'A,' being on the West Virginia side of the river, was located and built at the outer edge of low-water mark, pier 'B' 250 feet west therefrom, pier 'C' 250 feet west of pier 'B,' and pier 'D' at the edge of the water at low-water mark on the Ohio side, at the distance of 500 feet from said pier 'C;' the west side of pier 'A' and the east side of pier 'D' reaching to the edge of the water at low-water mark. The long span between piers 'C' and 'D' was duly established as the channel span, after notice duly given and consultation with those engaged in the navigation of the Ohio river, as required by law.'

On January 27, 1882, these corporations entered into a written contract with the defendants for furnishing the material and building these piers. This contract in terms provided that defendants were 'to furnish all material of every kind, name, and description necessary for the construction of the same, said material to be subject to the approval of said engineer, and to be of such quality as may best insure the durability of said structure; to be at the expense of and subject to all expenses incident to and connected with said work of construction, the said work to be done and completed according to the plan and specifications hereto annexed, marked 'A,' and subject to the inspection and approval of the said engineer of said companies in charge of said work, and which said plans and specifications are hereby expressly made a part of this contract.' It further provided that 'the work throughout will be executed in the most thorough, substantial, and workmanlike manner, under the direction and supervision of the engineer of the company, who will give such directions from time to time during the construction of the work as may appear to him necessary and proper to make the work complete in all respects, as contemplated in the foregoing specifications. Said directions of the engineer will in all respects be complied with. The engineer will also have full power to reject or condemn all work or materials which, in his opinion, do not conform to the spirit of the foregoing specifications, and shall decide every question that may arise between the parties relative to the execution of the work, and his decision in the nature of an award shall be final and conclusive on both parties to this contract.'

Under this contract the defendants had, at the time of the injury, completed the two piers on the banks, and partly constructed the four piers between the banks. For two weeks before the injury the river had been rising rapidly, and the water was very high. Business on the river had been partially suspended on account thereof. On the Ohio side the bank was under water, which extended inland a quarter of a mile or more. The stage of the water in the river was then 55 feet above low-water mark. Three of the piers were from 37 to 47 feet below the surface of the water, while pier D, on the Ohio side, which had been completed to 48 feet above low-water mark, was covered to the depth of only about 7 feet.

'(5) There is a very slight curve in the river at Point Pleasant, the Ohio shore being on the convex side, and at high stages of water it is customary and proper for coal fleets to 'run the points,' running near the shore on the Ohio side at a distance of a quarter of a mile and more above the bridge in descending the river, and bearing out to the left of channel pier D, and between channel piers D and C, and running in near the shore on the West Virginia side about two miles below said village of Point Pleasant, and the channel of the river was between said channel riers C and D, and the usual and proper course was to run between said piers C and D, running the points as before stated.

'(6) The night before the accident, the plaintiffs' three steamboats,-the Resolute, the Alarm, and the Dexter,-with coal barges in tow, tied to shore during the night some distance above the bridge.

'The Resolute, with its tow, was in advance of the other two, passing the bridge on the morning of the accident between eight and nine o'clock. The Alarm, with its tow, reached the bridge about ten o'clock in the morning. Its tow consisted of six coal barges, three abreast, each barge being twenty-six feet wide, and drawing between seven and eight feet of water. The front middle barge ran upon and struck said channel pier D, which caused the injury complained of.

'The steamer Dexter, with its tow, passed shortly after between said channel piers C and D, where the Resolute, with its tow, had previously passed, and while one of the Alarm's barges that struck said pier D was still lying on said pier in plain view.

'(7) The morning of the accident was clear and calm, and the Alarm, with its tow, was steaming and handling well. The pilot in charge was well acquainted with the Ohio river at that point and from Pittsburgh to all points below, and while the work of constructing said pier was going on had passed there twice a week, and saw and knew where said piers were located, and to what extent the work had progressed, and where the channel span had been established, and its length, and also knew that prior to the location of said bridge the usual channel for coal fleets in passing down the river was further to the left, between piers B and C, and near to said pier B.

'(8) As the Alarm approached the bridge no halt was made, nor was any one sent forward in a skiff or otherwise to take observations or make inquiry. The pier standing on the Ohio bank, twenty-four feet out of water, was in plain view, and was seen by said pilot and others in the pilot house, and the same was the case as to the pier on the east bank of the river.

'The village of Point Pleasant and its buildings, well known to pilots and other rivermen, were also in plain view.

'There were also on the Ohio side, between the top of the bank, both above and below the bridge, growing trees, the tops of which were some distance out of water, that were in plain view, and were noticed by said pilot, but for the distance of about a quarter of a mile immediately above and below said bridge the line of trees did not extend. An the time of the accident there were present in the pilot house, aiding and assisting the pilot in charge, the other pilot of the Alarm and three other pilots, who were on the lookout, making observations and consulting as to the passage of the bridge, none of whom saw any buoys or break to indicate where the pier was. Another man acted as lookout, was on the extreme front of the tow, and he saw no buoys or break to indicate the location of said pier D.

'(9) During the building of said four piers between the banks of the river proper buoys had been kept upon the same, to which, during the night, proper lights had been attached as signals to warn passing boats and other water craft of danger; but for some days prior to the accident, on account of the height of the water and the large quantity of floating drift, the buoys had been carried off and floated down the river, but had been secured and replaced till the night preceding the accident, or the night previous to that, when the buoy on pier D had again been washed off, and had not been replaced at the time of the accident; and the fact of its absence was known to the defendants early in the morning of the accident, and they made no effort to restore it till after the accident, and that they might have done so; neither did they send any one up the river, or adopt any other plan, as they might have done, to notify approaching boats of the absence of said buoy, or adopt any other plan.

'(10) The said railroad companies provided, employed, and paid for the services of a chief and an assistant engineer to superintend said work, one of whom was at all times on the ground, and gave directions as to the mode and manner of constructing said stone piers, and decided as to the quantity of stone, the height and size and shape of the piers, and performed all the duties specified in said written contract. Said railroad companies, through said engineers as their agents, duly authorized, took charge of, directed, and controlled as to providing buoys and lights to be kept upon said piers, the character of the same, and the mode and manner of fastening them to said piers and keeping them in place. Said engineers of said railroad company, however, on behalf of said railroad company, employed the defendants to furnish the materials and perform the work in preparing said buoys and lights, and in putting them up and in keeping them in place when and as directed by said engineers. The defendants were paid for said materials and work, an acount of which was kept by defendants and was carried into their monthly bills with the stonework, and was settled and paid for with the other work.

'Prior to said accident said engineers had given to the defendants such directions as to the character of such buoys to be used, and as to the mode and manner of putting them and keeping them up, and it was the duty of defendants to see that they were kept up and replaced when washed away, under said instructions previously given, and without waiting for future instructions, and which they had undertaken to do.'

Upon these facts the court found as conclusions of law:

'(1) That the defendants, by the terms of said written agreement made with said railroad companies, are independent contractors, and are liable to the plaintiffs for the injury complained of.

'(2) That the agreement made by defendants with said railroad companies to furnish the material and do the work in preparing, putting up, and keeping up said buoys and lights on said piers created the relation of independent contractors, and made the defendants liable to the plaintiffs for the injury complained of.

'(3) That it was the duty of defendants to have kept a buoy upon said pier D, and, if washed off by drift or otherwise, to have replaced it, or if this could not have been done, on the morning of the accident, before the injury, they could and should have sent some one up the river a sufficient distance above the bridge, or adopted some other plan, to notify approaching boats of the loss of such buoy and of the location of the piers, and their failure to do so constitutes negligence on their part; and under such circumstances those in charge of plaintiffs' coal boats were not chargeable with negligence in failing to make accurate calculations as to the location of said pier D from the other objects in view, and seen by them, or that they might have seen.

'(4) That the plaintiffs and their agents in charge of the tow were at the time in the exercise of reasonable and proper care in the management and navigation of the tow, and were not guilty of contributory negligence; that at the time of the accident the plaintiffs' boat Alarm, with its coal tow, was in the usual and proper place of navigation at that stage of water.'

Judgment having been entered in accordance with these findings and conclusions, defendants sued out a writ of error from this court.

W. A. Hutchins and J. W. Bannon, for plaintiffs in error.

T. M. Hinkle, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.