City of Marinette v. Goodrich Transit Co.

• Decision Date: 08 April 1913
• Parties: CITY OF MARINETTE ET AL. v. GOODRICH TRANSIT CO.
• Court: Wisconsin Supreme Court

153 Wis. 92

140 N.W. 1094

CITY OF MARINETTE ET AL.

v.GOODRICH TRANSIT CO.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by the City of Marinette and another against the Goodrich Transit Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

The city of Menominee in the state of Michigan, and the city of Marinette in the state of Wisconsin, plaintiffs, maintained the bridge in question across the Menominee river between the said cities. On the morning of July 18, 1907, at about 2:30 a. m., the steamer Carolina, owned by the defendant, collided with the bridge in question, damaging it to the extent of $3,250. There is no dispute as to the amount of the damages, and this action is brought for the recovery thereof.

The negligence charged in the complaint is, in substance, that the defendant failed to give warning of the approach of the steamer which collided with the bridge so that the bridge might be opened for the steamer to pass through, and that the said steamer was so negligently and carelessly managed as to run into the bridge and cause the damage complained of. The defendant answered, admitting certain allegations of the complaint, and denying the material allegation respecting negligence of defendant, and also set up, as a separate defense, failure on the part of the plaintiffs to comply with the rules of the United States Lighthouse Board, passed in pursuance of an act of Congress relating to lighting bridges over navigable rivers, and providing that all parties owning, occupying, or operating bridges over any navigable river shall maintain at their own expense, from sunset to sunrise throughout the year, such lights on their bridges as may be required by the Lighthouse Board for the security of navigation; and in addition thereto all parties owning, occupying, or operating any bridge over any navigable river shall in any event maintain all lights on their bridge that may be necessary for the security of navigation. And the answer further alleged not only failure to comply with the rules of the Lighthouse Board, but also failure to maintain any proper lights on said bridge.

Motions for nonsuit and directed verdict in favor of the defendant were denied, and the jury returned the following verdict:

“(1) Were three blasts of the whistle on the Carolina blown in the usual place for signaling its approach to and intent to go through the bridge? Answer: No.

(2) Were the red lights on top of the center of the draw, and the two lights at its end on the east side, usually maintained by the plaintiffs burning at the time the Carolina struck the bridge? Answer: Yes.

(3) Was the defendant negligent in so running the Carolina as to permit her to strike the bridge? Answer: Yes.

(4) If your answer to the third question should be ‘Yes,’ then answer this: Was said negligence a proximate cause of the collision with and injury to the bridge? Answer: Yes.

(5) If your answer to the third and fourth questions should be ‘Yes,’ then answer this: Did any want of ordinary care on the part of the plaintiff contribute proximately to the collision with and injury to the bridge? Answer: No.”

The usual motions were made after verdict for change of answers in the special verdict and for new trial, which were denied, and judgment rendered in favor of the plaintiffs, from which this appeal was taken.

C. E. Kremer, of Chicago, Ill., and H. L. Frink, of Marinette, for appellant.

H. R. Goldman and John O. Miller, both of Marinette, and J. F. Cuddy and L. D. Eastman, both of Menominee, Mich., for respondents.

KERWIN, J. (after stating the facts as above).

[1] It is first insisted by counsel for appellant that the court below erred in overruling defendant's motion for nonsuit made at the close of the plaintiff's evidence. This contention is based mainly upon the proposition that it appears from the plaintiffs' showing that the rules of the Lighthouse Board, respecting lights to be maintained upon the bridge under authority of act of Congress, were not complied with. It is contended that the regulations of the Lighthouse Board have the force of a federal statute and must be recognized by the court as the law. It is conceded that the lights prescribed by the Lighthouse Board were not maintained upon the bridge. Under repeated decisions of the federal courts in admiralty cases, it has been ruled that, where such lights have not been maintained and a collision occurs, it is incumbent upon the party in default to show that the absence of such lights not only did not but could not have caused the injury. Smith et al. v. Shakopee, 103 Fed. 240, 44 C. C. A. 1; The Pennsylvania, 19 Wall. 125, 22 L. Ed. 148;Belden v. Chase, 150 U. S. 699, 14 Sup. Ct. 264, 37 L. Ed. 1218; The Martello, 153 U. S. 64, 14 Sup. Ct. 723, 38 L. Ed. 637.

[2] These decisions of federal courts arising on questions depending upon acts of Congress are entitled to weight with this court, if not controlling.

[3] The case was tried in the court below upon the law as laid down in the foregoing federal decisions, as appears from the able opinion of the trial judge in the record. As will be seen from the foregoing decisions the federal courts have quite uniformly held to a strict adherence to the requirements of the law in relation to lights and signals, and that no exception can be made unless, as is said, “the breach of regulations could not have been a contributing cause of the disaster.” But, if the default in obeying regulations be not a contributing cause, then such default will not defeat recovery. The Fannie, 11 Wall. 238, 20 L. Ed. 114.

There is evidence on the part of the plaintiffs tending to show that the captain in charge of the Carolina at the time of the collision, and for many years prior thereto, was familiar with the harbor and with the lights used on the draw; that lights were exhibited on the bridge at the time of the collision, as usual, sufficient to give warning that the bridge was not open; that, at the time of the collision, the night was clear so the bridge could have been seen from the Carolina coming up the river at a distance of from 400 to 500 feet so as to observe whether the bridge was being opened; that the whistle of the Carolina was not blown as a signal to open the bridge at the proper place, and was not blown at all until immediately before the steamer struck the bridge, and not in time so that the bridge could have been opened in time to avoid the collision; that the Carolina collided with the bridge and caused the injury. We think the evidence was ample to carry the case to the jury; therefore the motion for a nonsuit was properly overruled.

2. It is contended that the court erred in denying defendant's motion for a directed verdict at the close of all the evidence. In addition to the point that the absence of lights required by the Lighthouse Board was ground for a nonsuit, counsel for appellant further insist that upon all the evidence a verdict should have been directed for defendant, and an attempt is made to support this contention on two grounds, which will be briefly referred to. First, it is said that several witnesses testified that the government lights were much better than those maintained on the bridge, and that the evidence shows that the absence of government lights contributed to bringing about the collision. Second, it is insisted that the evidence on the part of appellant establishes beyond controversy that the whistle on the Carolina was blown as a signal for the opening of the bridge, and that this fact is established by the positive evidence of 12 witnesses, while the evidence on the part of the respondents is negative; therefore there was not sufficient evidence upon the point to carry the question to the jury, but that, as matter of law, it was established that the whistle was blown. The first of these propositions, as regards government lights, we consider the more serious question; but we are...