Bevilacqua v. United States

• Decision Date: 28 July 1954
• Docket Number: 210.,No. 209,209
• Citation: 122 F. Supp. 493
• Parties: BEVILACQUA v. UNITED STATES. YENTSCH v. UNITED STATES.
• Court: U.S. District Court — Eastern District of Pennsylvania

122 F. Supp. 493

BEVILACQUA v. UNITED STATES.

YENTSCH v. UNITED STATES.

Nos. 209, 210.

United States District Court, W. D. Pennsylvania.

July 28, 1954.

Patrick M. O'Donnell, Walker & O'Donnell, Pittsburgh, Pa., for plaintiffs.

John W. McIlvaine, U. S. Atty., D. Malcolm Anderson, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

GOURLEY, Chief Judge.

These are claims for money damages which arise out of two accidental drownings in the Allegheny River, Armstrong County, Pennsylvania, within the territorial jurisdiction of the United States District Court for the Western District of Pennsylvania.

Because the issues of fact are identical in both cases, and by stipulation of the parties, the cases were consolidated for trial.

The proceedings are brought by the administrator of the estate of Carl A. Bevilacqua, deceased, and administratrix of the estate of Emil Yentsch, deceased, against the United States of America pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq.

The case was tried without a jury and the following Opinion, Findings of Fact, Conclusions of Law, and Order are entered by the Court.

Opinion.

The following facts are uncontroverted:

Allegheny River Lock No. 8 is one of a series of navigation locks erected by the Federal Government and operated by the Corps of Engineers of the United States Army. The Allegheny River, above and below Lock No. 8, is a navigable stream, used by commercial and pleasure vessels.

For some months prior to the accident giving rise to these suits, Lock No. 8 was in operation from 7:00 a.m., E. D. S. T. to 11:00 p.m., E. D. S. T. During hours of operation the lock is attended by one or more lockmen who tend equipment, lock vessels through the locks, and maintain a log of traffic. During the evening hours of operation the presence of the lock is indicated to navigators by colored electric lanterns powered by electricity produced at the dam. The upper end of the lock is marked by a red light on the land wall and by three green lights on the river wall, the point at which vessels bound downstream enter the lock. Below the dam the lock is similarly identified by a red light on the land wall and by two green lights on the river wall. This marking system is uniform throughout the Allegheny River District.

The power generating equipment does not function between 11:00 p.m. and 7:00 a.m., when the lock is unattended. Though lockage between these hours is impossible, the river is used by fishermen and others throughout the night. The position of the lock and dam is indicated to these navigators by marine boom type kerosene lanterns of the same number and color as the electric lanterns and located at substantially the same places.

Thus on a dark night the lock and dam are not visible to navigators on the river above the dam and they are warned of the peril to navigation only by the kerosene lanterns.

The lockman on the evening shift is charged with the responsibility of igniting all seven kerosene lamps and examining their condition before leaving at 11:00 p.m. The practice is long established, and the duty well understood by all employees at the locks. Failure to make certain that seven kerosene lamps are in operation at closing time is a clear breach of duty and, if detected, would subject the responsible employee to disciplinary action, possibly separation from the service.

Emil Yentsch and Carl A. Bevilacqua, libelants' intestates, left Pittsburgh in the early morning hours of July 14, in the "Patti", a fourteen foot vessel equipped with an outboard motor. On that date they passed through Allegheny River Locks Nos. 2 through 9, bound upstream, and at 10:45 p.m. passed through Lock No. 9, bound downstream. At or about midnight of the same day, libelants' intestates lost their lives when the "Patti" collided with and plunged over the eighteen foot dam at Lock No. 8.

At approximately 12:05 a.m. of July 15, 1951, Mrs. Mabel Wyant, then residing in Adrian, Pennsylvania, opposite Lock No. 8, telephoned Lock No. 7 at Kittanning, Pennsylvania, reporting that a boat had just gone over the dam at Lock No. 8 and that Lock No. 8 was in total darkness.

Lovic D. Hughes was the duty lockman at No. 8 from 3:00 p.m. to 11:00 p.m. on July 14, 1951, and it was his responsibility to light the lanterns on that date.

The crucial issue of fact presented by the pleadings and by the irreconcilable evidence offered by witnesses for claimants and for the Government is whether or not Lovic D. Hughes lit the seven kerosene lanterns before leaving Lock No. 8 at 11:00 p.m. on July 14, 1951.

Upon a most thorough review of the testimony and the inferences to be drawn therefrom, noting the disinterest of claimants' witnesses to the proceeding and the parties, and the specific interest that government employees had with respect to their personal welfare in exonerating themselves from any non-feasance, and in evaluating inconsistencies and contradictions evinced in testimony of government witnesses, and from direct personal observation of the demeanor, expression and forthrightness of witnesses, it is my judgment and conclusion that the government employee or employees entrusted with responsibility of lighting the seven kerosene lanterns on the night of July 14, 1951 had failed to do so, and that the deaths of Emil Yentsch and Carl A. Bevilacqua, libelants' intestate, were the proximate result of said negligence.

At the trial of these cases the Government presented orally and in writing motions to dismiss the two claims with prejudice. In support of these motions the Government argued that the cases are excepted from the grant of consent to be sued because they involve discretionary functions and the Government has not accepted liability for the consequences of the...