Beck v. Johnson

• Decision Date: 13 April 1909
• Citation: 169 F. 154
• Parties: BECK v. JOHNSON et al.
• Court: U.S. District Court — Western District of Kentucky

169 F. 154

BECK v. JOHNSON et al.

United States Circuit Court, W.D. Kentucky.

April 13, 1909

[Copyrighted Material Omitted]

Heavrin & Woodward, for plaintiff.

J. E Williamson, H. P. Taylor, and H. J. Peckinpaugh, for defendants.

EVANS District Judge.

This civil action at law for the recovery of $20,000 damages for the death of plaintiff's intestate was brought in the state court, and, having been removed by the defendants to this court, a motion to remand it has been made by the plaintiff. The petition for removal, after showing (as indeed, the plaintiff's petition on its face had done) that the matter in dispute exceeds in value the sum of $2,000 exclusive of interest and costs, asserts that 'the action is one arising under the laws of the United States,' and is therefore within Removal Act March 3, 1875, c. 137, 18 Stat. 470 (U.S. Comp. St. 1901, pp. 508, 509). Whether or not this is correct is the sole question to be solved in passing upon the motion to remand.

The plaintiff's petition, after showing that R. D. Beck died intestate, and that plaintiff was appointed and qualified as his administrator by the proper state court, avers in paragraph 1 that on January 4, 1909, the defendant P. H. Johnson was the owner, and that the defendant T. K. Bowles, under the owner's employment, was the master, captain, or pilot, of the steamboat Samuel, and that:

'On or about the 4th day of January, 1909, while the defendant Bowles was employed by his codefendant Johnson as master and pilot of said boat, the Samuel, and while the defendant Bowles was acting in the line of his employment in the control, management, and direction of said boat, and while he was at the wheel piloting same, and in supreme command thereof, for his codefendant Johnson, who was then and there the owner thereof, the defendant Johnson, acting by and through his codefendant Bowles as aforesaid negligently and carelessly managed and operated the steamboat Samuel so as to cause the same, and the barges attached to same, to run against and over the raft which was tied up and anchored on the Ohio county shore of Green river, and on which the plaintiff's intestate was sleeping, and while plaintiff was exercising care of his own safety on Green river in Ohio county, Ky., thereby bruising, injuring, and drowning the said R. D. Beck, so that the said R. D. Beck did die, as a direct and proximate result thereof, within one hour thereafter, and this the defendant and each of them did in Ohio county, Ky., on or about the 4th day of January, 1909.

'Plaintiff states that the injuries above referred to were inflicted, and the collision above referred to occurred, about 11:30 p.m. on January 4, 1909, on Green river, in Ohio county, Ky., and that Green river is and was then a navigable stream, whose waters flowed into the Gulf of Mexico, and the said steamboat Samuel was then and there subject to the rules adopted by the board of the United States supervising inspectors, steamboat inspection service, February, 1907, which was approved by the Secretary of Commerce and Labor on February 25, 1907, under the authority of section 4412, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3020), and of the act of Congress approved January 18, 1897, c. 61, 29 Stat. 489 (U.S. Comp. St. 1901, p. 3029); that the steamboat Samuel was then and there towing three barges in front of it by pushing against the same, and also towing one barge on each side of it, at the time and place of the injuries complained of; that the moon was shining brightly, and only a thin mist or fog was in existence at the time and place of the injury and collision hereinbefore set out; and that rule 13 of the United States board of supervising inspectors, above referred to, is as follows:

"Rule 13. In fog, mist, falling snow, or heavy rain storms, whether by day or by night, the signals described in this rule shall be used by steam vessels:

"(a) A steam vessel under way in fog or thick weather shall sound at intervals of not more than one minute a prolonged blast of whistle, of from four to six seconds' duration, except that when towing one or more vessels, she shall sound three blasts of the whistle in quick succession.'

'And that rule 14 of the board above referred to is as follows:

''Rule 14. Every steam vessel shall, in thick weather, by reason of fog, mist, falling snow, heavy rain storms, or other causes, go at moderate speed.'

'And further, as a part of rule 14 of said board, on page 11 thereof:

''The lights for barges and canal boats when towed ahead or alongside of the steamer, as is customary upon rivers whose waters flow into the Gulf of Mexico, shall be as follows:

"When one barge is towed by a steamer, and such barge is towed ahead, such barge shall have a green light on the starboard bow and a red light on the port bow. When such barge is towed alongside of the steamer on the starboard side, such barge shall have a green light on the starboard bow. When such barge is towed alongside and one on the port side, such barge shall have a red light on the port bow. When two barges are towed alongside of a steamer, one on the starboard and one on the port side, the starboard barge shall carry a green light on the starboard bow, and the port barge shall carry a red light on the port bow. When two or more barges are towed ahead, the green light shall be placed on the starboard bow of the starboard barge, and a red light on the port bow of the port barge, and at a distance of not less than 10 feet above the surface of the water.

"The colored side lights referred to in the foregoing rules must be fitted within board screens, so as to prevent them from being seen across the bow, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an are of the horizon of 10 points of the compass, and so fixed as to throw the light from right ahead to 2 points abaft the beam on either side. The minimum size of glass globes shall not be less than 6 inches in diameter, and 5 inches high in the clear.'

'A copy of the rules of the board of the United States supervising inspectors is filed herewith as a part hereof, marked 'Pilot Rules.'

'That by Rev. St. U.S. Sec. 4233 (U.S. Comp. St. 1901, p. 2893), steam vessels when towing other vessels are required to carry two bright white masthead

lights vertically in addition to their side lights, so as to distinguish them from other vessels, which masthead lights were required to be of such character as to be visible on a dark night with a clear atmosphere at a distance of at least 5 miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of 20 points of the compass.

'Plaintiff says that, at the time and place of the collision above referred to, the defendants, and each of them, acting jointly, negligently failed to, and did not, sound three blasts of the whistle in quick succession each minute immediately before or at the time of the collision, nor did the defendants, or either of them, sound any blast of the whistle; that the defendants, and each of them, negligently failed to, and did not, have any lights whatever on the barges she was towing, nor on any of said barges, and the same, nor any of them, were lights as required by law and the rules then and there in force, nor were the lights on said barges or boat, or any of them, visible on a dark night with a clear atmosphere at two miles or any distance, nor were they so constructed as to show a uniform or unbroken light over an arc of the horizon of 10 points of the compass, and the defendants and each of them negligently failed to and did not carry on the steamer Samuel, at the time and place of the collision, the white masthead lights required to be carried, and that the lights carried on the Samuel could not, on a dark night with a clear atmosphere, be visible at a distance of 5 miles, or any distance in excess of 200 yards; and the defendants, and each of them, negligently failed to, and did not, at the time and place of the collision and injuries aforesaid, go at a moderate speed, but negligently and carelessly operated said vessel at an excessive rate of speed, and under a full head of steam, and negligently and carelessly directed and controlled the course of same, and negligently and carelessly failed to and did not keep any lookout or use ordinary care to avoid the collision and injuries complained of; that the negligence hereinbefore complained of, and all of it, was the joint and concurrent negligence of the defendants, and each of them, by reason of which plaintiff's decedent was injured as hereinbefore set out, from which injuries the plaintiff's intestate did then and there die.'

In paragraph 2 of the petition the plaintiff avers that:

'The defendant T. K. Bowles, at the time and place of the injuries complained of, in the collision hereinbefore set out, was grossly incompetent to manage, navigate, pilot or command the steamboat Samuel, and was unskilled in the management and navigation of steam vessels, and his incompetency was well known to himself and to his codefendant Johnson at and for many months prior to the time of the collision referred to in the first paragraph and the injuries to plaintiff's intestate; and that by reason of the incompetency and lack of skill of the said T. K. Bowles, acting in conjunction with the negligence set out in the first paragraph, the steamer was, by the joint negligence of each of the defendants caused to push its barges and tows against and over the raft and the body of the plaintiff's intestate, inflicting the injuries which resulted in the death of said intestate, as is set out...