Beavers v. Butler

• Decision Date: 30 June 1966
• Docket Number: No. 10622,10622
• Citation: 188 So.2d 725
• Parties: Earl David BEAVERS et ux., Plaintiffs-Appellees, v. James A. BUTLER et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 725

188 So.2d 725

Earl David BEAVERS et ux., Plaintiffs-Appellees, v. James A. BUTLER et al., Defendants-Appellants.

No. 10622.

Court of Appeal of Louisiana, Second Circuit.

June 30, 1966.

Rehearing Denied Aug. 4, 1966.

Writ Refused Oct. 11, 1966.

Hayes, Harkey & Smith, Monroe, Martin Rosen, New York City, for James A. Butler and Quincy Mut. Fire Ins. Co., defendants, plaintiff in reconvention and third-party plaintiffs.

Thompson, Thompson & Sparks, Monroe, for Earl David Beavers and Mrs. Clara Claudell Beavers, plaintiffs-appellees, Earl David Beavers, defendant in reconvention and third-party defendant.

Before HARDY, GLADNEY and AYRES, JJ.

AYRES, Judge.

This is an action by plaintiffs, husband and wife, for the recovery of damages resulting from a motorboat accident. Made defendants were James A. Butler and his liability insurer, Quincy Mutual Fire Insurance Company. Defendant Butler reconvened for damages against plaintiff Earl David Beavers. Butler and his insurer made a third-party demand also, against Beavers, upon a basis that in the event of judgment in favor of Mrs. Beavers her husband would be liable for one-half of the judgment because of his alleged guilt of concurrent negligence. These demands were rejected by the trial court, which awarded judgment in favor of plaintiff Mrs . Clara Claudell Beavers in the principal sum of $22,784.00 and, in favor of plaintiff Earl David Beavers, in the principal sum of $1,646.38. From the judgment thus rendered and signed, defendants appealed. Plaintiffs have answered the appeal praying for an increase in the awards.

Appellants specified a number of errors against the judgment, primarily as to factual findings which led to the conclusion that the negligence of defendant Butler was the sole and proximate cause of the accident.

The collision occurred on Lake D'Arbonne in Union Parish on the afternoon of May 23, 1964, in a blind curve of a narrow channel of the lake, formerly the mainstream of Bayou D'Arbonne. A 14-foot boat powered by a 40 h.p. Johnson motor owned and operated by Earl David Beavers, accompanied by his wife as a passenger, moving in a northwesterly direction, collided with a 17-foot boat powered by a 90 h.p. Johnson motor owned and operated by defendant Butler, who was accompanied by his wife, Mr. and Mrs. Edmond Middleton, and two small children, as it was moving in a southeasterly direction. The Beavers boat was being followed at a distance of 75--100 yards by another boat owned and operated by Glen Ray Wiggins, who was accompanied by his wife and young son.

Lake D'Arbonne is an artificial lake, rather extensive in area, covering approximately 15,000 acres. The channel in which the collision occurred is that which marked the course of Bayou D'Arbonne as it existed prior to the creation of the lake. This channel, which serves as a connection between the main area of the lake and the area wherein the highway boat ramps are located, is marked on each side by tree lines formerly constituting the bayou banks. The blind curve where the accident occurred bends to the left of the direction which was being followed by the Beavers boat and to the right of the direction in and, therefore, as Butler executed this offered in evidence disclose that the channel makes practically a 90-degree turn, and, therefore, a § Butler executed this turn, the right, or starboard, side of his boat should have first appeared to the view of the Beavers because of the angle of its approach. Upon entering the curve and perceiving the Beavers boat, Butler turned sharply to the starboard and was struck amidship by the Beavers boat. Following the impact, with the Butler boat's motor still running, both boats were propelled into the brush bordering the channel on the starboard side of the Butler boat. The Butler boat then sank.

Usual charges and countercharges of negligence were made by the parties litigant. For instance, Butler is charged in nonexclusive particulars with operating a highpowered boat in a narrow channel, in which visibility was limited, at a grossly excessive rate of speed; in failing to keep a proper lookout, and in disregarding the safety of other boaters in the area; in making a complete 180-degree turn in the direct path of an oncoming boat, and in failing to pass or signal his intention to pass on one side or the other of an oncoming boat; or to shut off his motor or to reduce his speed. Similar charges of negligence were directed to Beavers, particularly in operating his boat in a narrow, winding channel at a fast, excessive, and dangerous rate of speed without having his boat under control, and in proceeding on his left, or port, side of the channel, and in approaching a sharp bend in the channel at a fast, excessive, and dangerous rate of speed without sounding a warning or first ascertaining whether another boat was approaching from the opposite direction.

Defendant further pleaded, in the alternative, that Mrs. Beavers was guilty of contributory negligence in failing to protest her husband's careless operation of his boat, or to keep a proper lookout, or to protect herself from injury.

In law, rivers and streams are regarded as public navigable rivers which are navigable in fact, and they are navigable in fact when they are used or are susceptible of being used in their ordinary condition as highways of commerce over which trade or travel is, or may be, conducted in the ordinary mode of trade or travel on water. The Daniel Ball v. United States, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871).

Armand F. Rabun, Esq., an attorney of the Farmerville, Louisiana, bar and former chairman of the Bayou D'Arbonne Lake Watershed District Commission, testified, not only from personal knowledge but from history, that steamboat traffic on Bayou D'Arbonne was, at times past, quite extensive. In fact, Bayou D'Arbonne formed a part of the navigable waters of an extensive river system including the Ouachita, Black, Red, and Mississippi rivers.

Nor does the construction of a dam across the bayou in the creation of Lake D'Arbonne effect a change in its status as a navigable stream. 65 C.J.S. Navigable Waters § 5 c(2), p. 51; Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921); United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1941). We, therefore, find no basis for disagreement with the trial court in its findings that Lake D'Arbonne constitutes a part of the navigable waters of the United States, and that the rules prescribed in the appropriate Federal statutes are applicable to tort cases arising thereon.

When a maritime matter is pending in a state court, that court is required to follow the substantial maritime law, supplemented by state law if no contradiction appears. Rojas v. Robin, 230 La. 1096, 90 So.2d 58, 65 A.L.R.2d 1218 (1956); Jansson v. Swedish American Line, 185 F.2d 212, 30 A.L.R.2d 1385 (1st Cir., 1950).

It appears immaterial, however, whether the rights and the liabilities of the parties herein involved are governed according to applicable Federal statutes or by the principles generally applied in negligence cases. However, it may be pointed out that the Motorboat Act of 1940, 46 U.S.C.A. § 526l, provides that

'No person shall operate any motorboat or any vessel in a reckless or negligent manner so as to endanger the life, limb, or property of any person.'

A further rule is that, in the operation of boats in a narrow channel of an inland waterway, boats approaching one another head on shall each veer to the right and pass each other to the left, or on the portside, of the boat. 33 U.S.C.A. § 343(a).

Nevertheless, negligence, wheresoever the term is applied, is a lack of care under the circumstances prevailing at the time; it is the failure to exercise that care which a reasonably careful and prudent person would exercise under like circumstances.

The principal issues presented by this appeal are factual in nature and relate to the circumstances bearing upon the positions of the two boats with respect to the channel, the rate of speed, and the want of a proper lookout.

From our review of the record, we are convinced there was little, if any, difference in the speed of the two boats; that such speed was from 20--25 m.p.h. as the two boats approached the blind 90-degree bend in the channel; that the channel was approximately 55 feet wide between the foliage of the trees lining the former banks of the bayou; and, notwithstanding the obstructions to their view, both Butler and Beavers continued at full speed, without regard to the possible presence of other boaters around the bend.

Defendant's boat apparently reached the curve first and, on its rounding the bend, plaintiff's boat came into view in close proximity, whereupon defendant Butler cut his boat sharply to his right; plaintiff Beavers turned the switch of his motor to 'off' position, but, nevertheless, struck the left, or port, side of the Butler boat near the operator's seat. The Butler boat continued with its motor running, carrying the Beavers boat with it into the bushes on the former bank of the channel, before sinking.

The Beavers boat was admittedly moving to its left of the center of the channel. There is some controversy as to just how far it was to the left. Plaintiffs claim it was only four or five feet; whereas defendants would place its path much nearer the left bank. A similar controversy exists as to the exact location of defendant's boat. From our review of the record, while it would appear difficult, if not impossible, to locate the precise position of either boat, we are convinced plaintiff's boat was farther to the left of the channel than he or his witnesses claim, and that defendant's boat was not hugging its right bank as closely as defendant would have it believed--that it was farther out in the channel than defendant claimed.

After a consideration of all the aforesaid...