Dalldorf v. Higgerson-Buchanan, Inc., 12106

Decision Date27 September 1968
Docket Number12107.,No. 12106,12106
Citation402 F.2d 419
PartiesGilbert DALLDORF, Appellee, v. HIGGERSON-BUCHANAN, INC., Appellant. Gilbert DALLDORF, Appellant, v. HIGGERSON-BUCHANAN, INC., Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

J. Riley Johnson, Jr., and Thomas R. McNamara, Norfolk, Va., (Williams, Worrell, Kelly & Worthington, Norfolk, Va., on brief) for Higgerson-Buchanan, Inc.

Morton H. Clark, Norfolk, Va., (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief) for Gilbert Dalldorf.

Before SOBELOFF, BOREMAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

Dr. Gilbert Dalldorf brought an action against Higgerson-Buchanan, Inc., to recover for damages to his sloop, the WANIGAN, sustained when the sloop's mast came into contact with power lines of the Virginia Electric & Power Company passing over a new channel then in the process of being dredged by the defendant. After trial on the issue of liability, the District Court entered an interlocutory decree in which it held both parties guilty of negligence and equally at fault. Since this was an admiralty action, the court applied the doctrine of comparative negligence and awarded the plaintiff one-half of his provable damages.

Both parties appealed, each asserting his own freedom from negligence and assigning error to the trial court's findings to the contrary. We affirm the finding that the defendant was negligent but do not sustain the finding of contributory negligence against the plaintiff.

On the morning of May 1, 1966, the plaintiff was operating the vessel in the Inland Waterway under power in a northerly direction toward the Elizabeth River. Some distance north of the locks at Deep Creek, he approached a divide in the channel, which looked like the arms of a Y. His chart did not indicate the existence of this divide. Deliberating the situation and concluding that the channel to the right was a continuation of the main channel, the plaintiff entered. After proceeding approximately fifteen hundred feet into this channel, the sloop's mast struck three power lines strung forty feet above the water, resulting in the damages for which the plaintiff now seeks redress.

The channel or "cut" in which the accident occurred was being dredged by the defendant contractor pursuant to a contract with the Virginia State Department of Highways and was of approximately the same width and appearance as the old channel. The contract also called for the filling of the existing channel and it was contemplated that the proposed Interstate Highway 64 would run, in part at least, along the path of the pre-existing channel. Dredging had begun in January, 1966, and a sign reading "Slow to Stop — Dredging Operations Ahead" was placed on the west bank of the waterway four hundred feet south of the division in the channel. The overhead wires which caused the damages complained of passed over the old channel at a height of one hundred feet, as shown by the navigator's chart in plaintiff's possession. Overland, however, the wires were carried at a level of only twenty-five feet. The Virginia Department of Highways had contracted with Virginia Electric & Power Company to raise the wires to one hundred feet over the new channel, but at the date of the accident the wires over the new channel had been raised to a height of only forty feet.

On this appeal defendant contends that it had no legal duty with respect to the overhead wires and therefore cannot be held to have been negligent. In support of this contention, it relies on a number of cases declaring that a contractor has no duty to exercise reasonable care to warn of the existence of obstacles which he did not create, over which he had no control, and which are in no way connected with his work. See White v. White Consolidated, Inc., 157 F.2d 758 (7 Cir. 1946); Blanksten v. United States, 236 F.Supp. 280 (N.D. Ill.1964); Thornton v. United States, 236 F.Supp. 651 (S.D.Miss.1964).

We do not quarrel with the abstract proposition, but it is without relevance here. As we view the relationship of the defendant's dredging operations to the overhead wires, the defendant did in fact create the hazard that resulted in the virtual destruction of the WANIGAN. The defendant's activities were designed to transform the terrain into a navigable channel. It is undisputed that the defendant was dredging the new channel with actual knowledge that the wires were originally only twenty-five and later forty feet above the water. While prior to the defendant's activities there was no foreseeable danger that anyone or anything would come into contact with the highly charged transmission lines, this was no longer the case once the new channel was begun and left open to easy access. The lines which posed no threat previously were converted into a menace by the defendant's action. It was then reasonably foreseeable by the defendant that the newly created situation presented a threat of harm to anyone who might mistakenly enter the new channel.

It is an elementary principle of negligence law that a person who creates a risk of foreseeable harm to others is under a duty to exercise reasonable care to prevent the threatened harm. The American Law Institute's Restatement Second of the Law of Torts declares that "negligent conduct may be * * * an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another," Section 284, or an act or omission involving "an unreasonable risk of harm to another," Section 302. And the Comment to the latter section states that "in general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act." The same idea was aptly stated in the recent case of Gowdy v. United States, 271 F.Supp. 733 (W.D.Mich.1967), "duty is born of danger to others reasonably perceived by the person charged with guarding against the hazard." As the defendant's duty springs from its having brought about the risk of harm to others, it is immaterial that it did not own the wires, had not placed them there, and had undertaken to do nothing directly to them.

By the above legal criteria the defendant fell short of its duty. The only step taken by the defendant which might tend to protect those whom it had endangered was the placing of a "warning" sign four hundred feet from the divide in the channel. As noted, the sign read: "Slow to Stop — Dredging Operations Ahead." Against what danger can this be said to caution an observer? It was entirely useless as a warning of the peril which in fact resulted in this casualty — contact with overhead wires. It was, moreover, insufficient to charge the plaintiff with notice that the proper channel was to the left and that the channel to the right was hazardous and should be avoided. In fact, in warning the navigator of "dredging operations ahead" the sign impliedly assured him that the site of the dredging operations was in the main channel. In this respect it was deceptive. The sign was clearly inadequate as a warning either to stay out of the new channel or to beware of the overhead hazard. The failure so to warn was negligence, and the District Court's finding to this effect is therefore accepted.

However, a careful review of the evidence in light of well-established legal principles persuades us that there is no ground for holding plaintiff contributorily negligent. On the morning in question, plaintiff was in the cabin, seated at the steering wheel. He passed the sign and approached the newly created Y in the channel. The plaintiff testified that he did not see the sign but, as we have just noted, even if he had, it would have told him nothing pertinent to the wire hazard. One may readily visualize circumstances in which failure to observe a sign would constitute contributory negligence. This is not the case here because this sign conveyed no adequate warning and plaintiff's failure to see it in no way influenced the event under inquiry. At most, the sign can be said to charge the plaintiff only with such knowledge as it would have imparted.

Upon reaching the confluence of the old channel with the new, the plaintiff consulted his chart which gave no indication of the new cut. Since the waterway was unbuoyed, the plaintiff had to rely on his eyesight and seamanship in seeking the good water. He followed the course which to all appearances was the main channel. At the time of the accident, no dredging was actually going on because it was early Sunday morning. The plaintiff testified that it was obvious to him that the channel he had chosen had been recently dredged because of the "skinned" appearance of the banks and the presence of dredging pipes on the banks, but this is precisely what he would expect to see if the dredging was in the old channel. He also testified he believed at all times that he was in the main channel, and there was nothing to indicate the contrary. The overhead wires were fifteen hundred feet up the new channel and were supported by two poles seventy-five feet in height one hundred feet distant from the banks. A dredge yellow and white in color was situated nine hundred feet beyond the wires at the point to which the dredging had been completed, and the plaintiff testified that from his vantage point he did not see the poles supporting the wires, the dredge, the end of the new channel, or the wires which caused the accident. As shown by the testimony and exhibits the view from the entrance to the channel was not complete because of a bend, and this was perfectly consistent with the chart. The plaintiff testified that his attention was directed to the water as he was continually seeking to remain in good water and that the sun's glare impaired his vision somewhat. On the basis of these facts, the District Judge found the...

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