Astoria & C. R. R. Co. v. Kern

• Decision Date: 04 April 1904
• Citation: 44 Or. 538,76 P. 14
• Parties: ASTORIA & C.R.R. CO. v. KERN.
• Court: Oregon Supreme Court

76 P. 14

44 Or. 538

ASTORIA & C.R.R. CO. v. KERN.

Supreme Court of Oregon

April 4, 1904

Appeal from Circuit Court, Clatsop County; Thomas A. McBride, Judge.

Action by the Astoria & Columbia River Railroad Company against Daniel Kern. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff is the owner and engaged in the operation of a railway, that portion of its track within the eastern and western limits of the city of Astoria being constructed upon piles over and along the shore of the Columbia river, between high and low water. For cause of action it alleges, in brief that on the 25th day of December, 1901, the defendant, being the owner of and having in his possession three large barges anchored the same in the Columbia river, north of and a short distance from plaintiff's trestle; that it was the duty of defendant to anchor them securely, and guard them so as to prevent their drifting or being carried by the wind and tide that prevail in the locality during that season of the year but, in disregard of such duty, he negligently secured the barges and each of them with weak, rotten, and insecure ropes, knowing the same to be unsuitable and insufficient and failed and neglected to leave the same in charge of any person, or to have any one look after, watch, or guard them or either of them, by reason whereof the barges, and each of them, broke away from their moorings, and drifted and were driven by the wind and tide upon plaintiff's trestle, to its damage in the sum of $1,000. The answer controverts these allegations, and sets up a further defense, in effect, that defendant was engaged in dredging the channel of the Columbia river under the direction of a government engineer; that in doing the work it became and was necessary to use barges, and to anchor them at or near the point designated in the complaint; that he securely anchored them, and caused the same at all times to be watched and guarded, so as to prevent them from drifting or being carried away by the wind and tide, but that at the time mentioned in the complaint an unusual, extraordinary, and violent storm suddenly arose accompanied by an unusual, high, and extraordinary wind and tide, of such force that, notwithstanding the precautions taken, the barges dragged their anchors, and were driven and carried to and upon plaintiff's trestle, damaging it not to exceed $400; and that said damage was due solely to the unusual and extraordinary character of the storm and tide then prevailing, for which defendant is not liable. The case was tried before the court, a jury having been waived, which made and filed findings of fact and conclusions of law. Those that are material here are findings of fact Nos. 5 and 6. Nos. 1, 2, and 3 accord with the allegations of the complaint. No. 4 is in accordance with the allegations of the answer as to defendant's being engaged at the time in dredging the channel of the Columbia river, that in performing such work it was necessary to use the barges in question, and that at the time stated defendant had them anchored in the position designated. No. 5 finds that on the night of December 25th there arose a severe windstorm, but such as has frequently occurred in the locality during that season of the year, and such as it became and was the duty of the defendant, in anchoring his barges and scows, to provide against; that he did not securely or properly anchor the same, but, on the contrary, he fastened them with old, weak, rotten, and insecure ropes; that it was customary in that port to provide watchmen upon barges to look after their moorings, and generally to watch and care for such vessels, and it was the duty of defendant to have had on each of said barges at the time a watchman, commonly called an "anchor watch"; that defendant had none such on board, but that some of his employés were sleeping on one barge only; that on the night in question all the barges except one broke away from their anchorage, the ropes with...