Casement v. Brown
Decision Date | 10 April 1893 |
Docket Number | No. 173,173 |
Citation | 148 U.S. 615,13 S.Ct. 672,37 L.Ed. 582 |
Parties | CASEMENT et al. v. BROWN et al |
Court | U.S. Supreme Court |
Action by Samuel S. Brown and Harry Brown, partners as W. H. Brown's Sons, against J. S. Casement & Co., for negligence. There was judgment for plaintiffs, and defendants bring error. Affirmed.
Statement by Mr. Justice BREWER:
This was an action to recover the value of three barges of coal, lost, as claimed, through the negligence of the defendants. The case was commenced in the court of common pleas of Scioto county, Ohio, and removed to the circuit court of the United States for the southern district of Ohio. There it was tried by the court without a jury. Findings of fact were made, and from those findings the conclusion was reached that the defendants were guilty of negligence, whereupon judgment was entered in favor of the plaintiffs for the amount of the loss.
These facts appeared in the findings: Early in the year of 1882 two railroad corporations, one an Ohio and the other a West Virginia corporation, obtained proper authority from those states and from the United States government for the construction of a railroad bridge across the Ohio river, opposite the village of Point Pleasant, in West Virginia. The plan of the bridge and the number and size of the stone piers were submitted to the proper officers of the United States government, and approved, and the bridge and piers were duly constructed as authorized by such officers.
On January 27, 1882, these corporations entered into a written contract with the defendants for furnishing the ma- terial and building these piers. This contract in terms provided that defendants were 'to furnish all material of every kind, name, and description necessary for the construction of the same, said material to be subject to the approval of said engineer, and to be of such quality as may best insure the durability of said structure; to be at the expense of and subject to all expenses incident to and connected with said work of construction, the said work to be done and completed according to the plan and specifications hereto annexed, marked 'A,' and subject to the inspection and approval of the said engineer of said companies in charge of said work, and which said plans and specifications are hereby expressly made a part of this contract.' It further provided that
Under this contract the defendants had, at the time of the injury, completed the two piers on the banks, and partly constructed the four piers between the banks. For two weeks before the injury the river had been rising rapidly, and the water was very high. Business on the river had been partially suspended on account thereof. On the Ohio side the bank was under water, which extended inland a quarter of a mile or more. The stage of the water in the river was then 55 feet above low-water mark. Three of the piers were from 37 to 47 feet below the surface of the water, while pier D, on the Ohio side, which had been completed to 48 feet above low-water mark, was covered to the depth of only about 7 feet.
'(5) There is a very slight curve in the river at Point Pleasant, the Ohio shore being on the convex side, and at high stages of water it is customary and proper for coal fleets to 'run the points,' running near the shore on the Ohio side at a distance of a quarter of a mile and more above the bridge in descending the river, and bearing out to the left of channel pier D, and between channel piers D and C, and running in near the shore on the West Virginia side about two miles below said village of Point Pleasant, and the channel of the river was between said channel riers C and D, and the usual and proper course was to run between said piers C and D, running the points as before stated.
'(6) The night before the accident, the plaintiffs' three steamboats,—the Resolute, the Alarm, and the Dexter,—with coal barges in tow, tied to shore during the night some distance above the bridge.
'The steamer Dexter, with its tow, passed shortly after between said channel piers C and D, where the Resolute, with its tow, had previously passed, and while one of the Alarm's barges that struck said pier D was still lying on said pier in plain view.
'The village of Point Pleasant and its buildings, well known to pilots and other rivermen, were also in plain view.
'(9) During the building of said four piers between the banks of the river proper buoys had been kept upon the same, to which, during the night, proper lights had been attached as signals to warn passing boats and other water craft of danger; but for some days prior to the accident, on account of the height of the water and the large quantity of floating drift, the buoys had been carried off and floated down the river, but had been secured and replaced till the night preceding the accident, or the night previous to that, when the buoy on pier D had again been washed off, and had not been replaced at the time of the accident; and the fact of its absence was known to the defendants early in the morning of the accident, and they made no effort to restore it till after the accident, and that they might have done so; neither did they send any one up the river, or adopt any other plan, as they might have done, to notify approaching boats of the absence of said buoy, or adopt any other plan.
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