Billings v. Breinig
| Decision Date | 05 January 1881 |
| Court | Michigan Supreme Court |
| Parties | BILLINGS v. BREINIG. |
Where a ferry-man on shore was killed through the carelessness of a tug in running into a wire rope stretched across the river and by which the ferry was operated, held, that the wrong was not one of which the federal courts had exclusive jurisdiction, and that an action could be maintained therefor in the state courts under sections 6724, 6725, Comp.Laws. A right to operate a ferry is a franchise, and, subject to the sovereign power to control the same, may be transferred by the grantee thereof. Conduct of managers of a tug in moving the tug directly across a ferry track at night, without previous warning or whistle, held negligence. In action for damages from negligence, exercise of due care by plaintiff need not be shown by direct evidence, but if the occurrence itself and the surrounding circumstances are sufficient to breed such inference, and the jury might draw it in the proper exercise of their functions, it is sufficient. Cause held improperly taken from the jury.
Error to Mason.
White & McMahon, for plaintiff in error.
Fitch & Samuels, for defendant in error.
A wire rope being stretched across an expansion of the river Marquette at Ludington for ferrying purposes and connected on shore with a fixed windlass to elevate it for use and drop it in the water to avoid vessels, the defendant in the early evening of October 17, 1878, ran his tug against it. At the same time the decedent was in temporary charge of the ferry and was at the windlass for the purpose of dropping the rope out of the tug's way; he having repaired to the spot therefor in great haste on learning that the vessel was moving towards the rope and was near to it. The rope was still up, but decedent was in the act of lowering it as the tug struck. The violent strain whirled the windlass crank with great suddenness and force and caused it to strike the plaintiff's husband on the head, killing him instantly.
The plaintiff brought this action under the statute of 1848 (sections 6724, 6725, Comp.Laws) as amended in 1873 by act No. 94, to recover such damages as should "be fair and just with reference to the pecuniary injury resulting from such death to those persons--entitled to such damages when recovered."
The circuit judge took the evidence from the jury and in substance and effect directed a verdict for the defendant. In so proceeding he seems to have considered that whatever view the jury might take of the defendant's conduct the showing was conclusive that the catastrophe was owing in part at least to the want of due care on the part of the decedent.
The plaintiff now questions the ruling on a bill of exceptions. The defendant's counsel not only support the opinion of the circuit judge, but urge independent objections against the action. These points may be first noticed. It is objected that the suit is for a maritime tort and the remedy is by statute and that the jurisdiction rests in the courts of the United States and cannot be exercised by the state tribunals. The point is not well taken. Rev.St.U.S. � 563, subd. 8. The common law gives the right of a common-law remedy to redress the grievance which is made actionable by the state statute and this brings the case within the saving provision of congress. Steam-boat Co. v. Chase, 16 Wall. 522; Levi v. Galceran, 11 Wall. 188; Brown v. Gilmore Pa. S.C. not yet reported. See, also, Canfield v. Brig City of Erie, 27 Mich. 479; McDonald v Mallory, 77 N.Y. 546; Schoonmaker v. Gilmore and Brown v. Davidson, S.C.U.S. not yet reported.
It is next objected that decedent's death came about by his acting as a ferry-man, and that he was so acting under one Christian, whose authority was under a license granted to his lessor by the board of supervisors of Mason county, who at the time of the license had no authority because the control of the ferry had prior thereto been given by the legislature to the city of Ludington in the grant of city goverment in 1873. The record fails to sustain the objection in matter of fact.
The trial was in February, 1880, and the proof was positive that the ferry had been then established 17 years at least, and the license must therefore have antedated so far as appears the charter of the city more than 10 years. The legislature had no power and seems not to have assumed any to abrogate any existing license. At the time of the occurrence the ferry had been held and occupied under color of a grant from competent authority during the long period mentioned, without any question being raised as to existence and regularity of the franchise.
The public authorities and the public generally had acquiesced. No one suggested any defects. It was not doubted but that the grant was legal, and it will not be contended by any one that mere matter of forfeiture could be investigated in this action. A direct proceeding would be indispensable. Harrell v. Elsworth, 17 Ala. 576; New Albany, etc., R. Co. v. Huff, 19 Ind. 315; Mackall v. Chesapeake, etc., Canal Co. 94 U.S. 308; Thompson v. R. Co. 3 Sandf.Ch. 625. The franchise is property and it possesses the valuable incidents of other species of property. Conway v. Taylor, 1 Black, 603; Lippincott v. Alexander, 27 Iowa, 460.
And subject to that power of control by the government which results from sovereign duty in reference to matters of a public nature and subject to such conditions as are lawfully imposed, it may be passed from the original grantee to others. Lippincott v. Alexander, supra; Bowman's Devisees v. Wathen, 2 McLean, 376; Peter v. Kendall, 6 Barn. & Cress. 703; Felton v. Deal, 22 Vt. 170; Ladd v. Chotard, 1 Miner, (Ala.) 366; Bigg v. Ferrell, 12 Iredell, 1; Lewis v. Intendant and Town Council of Gainsville, 7 Ala. 85; Benson v. The Mayor, etc., of N.Y. 10 Barb. 223; Willoughby v. Horridge, 16 E.L. & E. 437; Prim v. Curell, 6 Mees. & Welsh, 234; Bridgland v. Shapter, 5 Mees. & Welsh, 375.
There is no suggestion of the existence of anything to hinder a transfer by the first proprietor of this ferry nor prevent subsequent proprietors from leasing it, and as before stated the public authorities have manifested no disapproval of the changes which seem to have taken place. So far as appears the right was in being and in the lawful enjoyment of the decedent's employer when the injury was done. But were the facts sufficient to raise a question against the regularity of the steps taken to confer the franchise it cannot be taken for granted that this defendant would be entitled to make use of the circumstance as matter of defence against the present cause of action. The attempt would encounter strong objections. Peter v. Kendall, supra; Cownor v. Paxon, 1 Blackf. 168.
No decision of the question is now needful. That the defendant was guilty of negligence seems not to have been questioned. The evidence tended to show that he knew very well the character of the ferry and its position and that having that knowledge he moved the tug after dark directly across the ferry track without previous warning by light or whistle. True there was evidence to the effect that at least one former ferry-man had always kept the rope drawn at night unless he indicated by his lantern to tugs and other...
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