Anderson v. Columbia Contract Co.

• Decision Date: 23 September 1919
• Citation: Anderson v. Columbia Contract Co., 94 Or. 171, 184 P. 240 (Or. 1919)
• Parties: ANDERSON v. COLUMBIA CONTRACT CO. [a1]
• Court: Oregon Supreme Court

184 P. 240

94 Or. 171

ANDERSON v. COLUMBIA CONTRACT CO. ^[a1]

Supreme Court of Oregon

September 23, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Peter Anderson against the Columbia Contract Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The Columbia Contract Company, an Oregon corporation having its principal office in Portland, appealed from a judgment for $1,050 which Peter Anderson obtained against it for damages done to his fish trap by the company's towboat and barges. Anderson owned a pound net fish trap on the Washington side of the Columbia river. The waters of the river are affected by the ebb and flow of the ocean tides at the place where the trap is located. The fish trap was constructed by driving piling into the bed of the river and attaching web or nets to the piling in the manner described in Monroe v. Withycombe, 84 Or. 328, 331, 165 P 227. The extreme width of the heart of the Anderson trap was approximately 50 feet; the lead was about 350 feet long, with the piling in it set from 8 to 10 feet apart; and hence the trap was about 400 feet over all.

About 300 feet above the Anderson trap, and on the Washington shore of the river, was a light, and back further "up in the woods" was a second light. These two lights are known in the record as the range lights. On the Oregon side of the river, and above the Anderson trap, is a place called "Bugby Hole," where another light is kept; and between Bugby Hole and the Anderson trap is a bar in the river, called "Puget Bar." Upon leaving Bugby Hole masters of vessels navigate Puget Bar by getting in line with the two range lights and steer on that course until the bar is crossed.

Along the entire length of the Anderson trap the water is about 17 feet in depth, except at the "inner end," where it is "about 8 or 10 feet." About 1,800 feet above the Anderson trap, on the Washington side of the river, is another trap, known as the "Brandt trap." There is no obstruction between these two traps. Referring to the towboat and barges operated by the defendant, one witness stated that there "was water enough" between the two traps "so that you could go pretty close by the shore."

We cannot speak any more definitely of the width of the river at the place where the Anderson trap is located than to say that it is between 2,000 feet and one mile. Puget Bar ends at a point above the Anderson trap. According to the testimony of one witness for the plaintiff, "after you get across the bar, and down the river, the whole river is deep, and you can go anywhere." Another witness for Anderson stated that "it is deep water clear across" opposite the Anderson trap. J. O. Church, who was employed by the defendant as master of the towboat Samson and was thoroughly familiar with the presence and location of the Anderson trap explained that, if it be assumed that the river is 2,000 feet wide at the Anderson trap, "you will probably have 500 feet there" beyond the outside end of the trap to "navigate in." The plaintiff contended that there "is 3,000 or 4,000 feet of channel there--deep water across the channel."

The witnesses differed in their opinions as to how far vessels usually ran outside the Anderson trap when passing up or down the river. The estimates given by the witnesses for the plaintiff range from 800 to 1,000 feet. Capt. Church, a witness for the defendant, testified: "I should judge the steamships ran in within 250 feet." J. E. Copeland a master of steamboats with many years of experience, stated that the course usually followed by him before the trap was put in ran about 20 feet from it; but after the trap was installed he made a change in his course, by changing one-eighth of a point in the distance from Puget Bar to the range light, and this changed course passed the end of the trap at a distance of about 200 feet.

The Columbia Contract Company was engaged in transporting rock down the river to the jetty at the mouth of the river, and for that purpose the company used three barges and a towboat called the Samson. Each barge, when loaded, carried about 800 tons of rock and drew about 10 feet of water. The Samson drew between 14 and 14 1/2 feet of water. Each of the barges was about 140 feet long and approximately 40 feet wide. The Samson was about 125 feet long, with a 25-foot beam. At some time in 1911, probably September 28th, the defendant was taking the Samson and three barges loaded with rock down the river. One barge was lashed to the bow of the Samson, while a second barge was lashed on one side, and the third barge was lashed on the other side of the first barge and towboat, making of the towboat and barges what counsel have termed in their briefs a "spike formation." The flotilla was approximately 120 feet wide. The Samson, with its barges, passed Bugby Hole about 3 a. m., and at that time it was so foggy that the range lights above the Anderson trap could not be seen. The fog made its appearance on the river about midnight, and in a short time became so thick that the range lights were completely obscured from view and could not be seen by fishermen on the river. One fisherman, Christian Tholo, was operating a gill net in the channel of the river a short distance above the Anderson trap, and upon hearing the fog signal of the Samson he took in his net. He could not see the range lights; nor could he see either the Oregon or Washington shore, and after changing the course of his gasoline boat several times he finally found himself at the end of the Brandt trap, where he tied his boat. Another fisherman, Olaf Vog, was likewise operating a gill net in the channel of the river near to and a short distance above the Anderson trap. When he reached what he supposed was the end of his drift or the place where he "should start to pick up," he took up his gill net, and although he "wanted to get over to the Oregon shore" he found himself on the Washington side at the Anderson trap, where he tied up "and laid down in the boat."

Not being able to see the range lights, upon leaving Bugby Hole the master of the Samson navigated his vessel by clock and compass, by noting the time shown by the clock and by observing the course recorded in his course book. He explained that 14 minutes of running would have brought the flotilla to the Anderson trap; that at the end of 11 minutes he slowed down, and at the end of 12 or 13 minutes he stopped the engines and drifted. After Puget Bar is crossed, and while passing the Brandt and Anderson traps, vessels, when following the usual course, are not navigated on a tangent, but are steered along the line of a slight curve. The two traps are on the outer side of this curve. The usual course taken by vessels is farther out from the Brandt trap than from the Anderson trap, and yet Tholo, the fisherman who had tied up his boat at the Brandt trap, says that the Samson and the barges passed within 20 feet of the Brandt trap. According to this witness the Samson with its barges proceeded down the river through the waters between the Brandt and Anderson traps, and then ran on through the latter trap. The flotilla ran through the lead of the Anderson trap at a point between the heart and inner end of the lead, taking out 24 piling, and ran so close to the heart of the trap that only one or two piling next to the heart and in the lead remained standing.

Anderson repaired the trap, and at the end of two weeks from the date of the accident was able again to operate it. He sued the Columbia Contract Company for the total sum of $1,618.60. This total sum embraced two items--one for $818.60, the cost of repairing the trap, and the other $800, the amount of the "money and profits" which Anderson alleges he could and would have earned if the trap had not been injured.

The complaint contains six specifications of negligence. The plaintiff alleges: (1) That, although there was a fixed channel and course in which vessels navigating the river should be operated, the defendant negligently failed to keep the tugboat within the limits of "said channel, and carelessly and negligently navigated said vessel outside and beyond said fixed course and channel, and into and against said fish trap"; (2) that the defendant negligently failed to maintain sufficient lights upon the vessel, so that objects lying in the stream could be seen and avoided; (3) that the defendant negligently failed to maintain a lookout, and neglected to keep a sufficient watch ahead; (4) that the defendant negligently failed to see and avoid striking the trap; (5) that the defendant negligently operated the vessel at a dangerous and unsafe rate of speed; and (6) that the defendant negligently failed to stop the vessel and to run aside, so as to avoid the fish trap, after the trap was or should have been seen by the defendant.

In its answer the defendant denies that it was guilty of negligence in any particular. As a further answer to the complaint the defendant avers that the fish trap was unlawfully built and maintained, and in such a manner that it obstructed the navigable channel of the river and was a menace to navigation; that the trap was unlawfully maintained in two particulars: (1) That it extended from the shore to a point in the navigable channel in the river; and (2) "that the signals and lights were not maintained thereon as required by law." The defendant alleges that at a time when it was lawfully navigating the river on a dark and foggy night, and while moving slowly down the stream "in the channel thereof," and "solely because the said fish trap was so located that it obstructed the navigable channel of the said river, the said steamboat, with its tow, ran into said fish trap."

The...