Dye v. United States

• Decision Date: 08 February 1954
• Docket Number: No. 11815.,11815.
• Parties: DYE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F.2d 123 (1954)

DYE et al. v. UNITED STATES.

No. 11815.

United States Court of Appeals Sixth Circuit.

February 8, 1954.

S. Arnold Lynch, Louisville, Ky. (Edgar J. Wells, Louisville, Ky., on the brief), for appellants.

T. S. L. Perlman, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Paul A. Sweeney, Washington, D. C., David C. Walls, Charles F. Wood, Louisville, Ky., on the brief), for appellee.

Before ALLEN, MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

In these court actions, consolidated for trial, the United States District Judge, after hearing the evidence and the arguments, dismissed the complaints in the three cases. The actions were brought under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), against the United States, by the administratrix of the decedent in each case. Recovery of damages was sought for the death of the three decedents allegedly caused by the wrongful acts and negligence of agencies of the United States. The respective complaints averred that the United States Coast Guard and the United States Corps of Engineers, acting through their agents, so carelessly and negligently permitted the wickets of Dam 41 on the Ohio River in the State of Kentucky to be open — without adequate warning to persons traveling upon the Ohio River and without suitable provisions for their protection — as to cause a strong and violent current, which capsized two small boats, pulled them over the dam, and threw the respective occupants of the boats into the water with such force and violence that, as a direct consequence, each was immediately drowned.

Upon the trial, it was stipulated that Dam 41 is owned by the United States; that the Corps of Engineers, an agency of the executive branch of the United States, is charged with the duty of maintaining and operating the dam; that on March 20, 1949 (the date of the fatal accident), 1200 feet of wickets in the dam were open; that on that date the drop of water from the upper pool to the lower pool was between 17 and 21 feet; that on such date, around four o'clock P. M., James O. Dye and Charles R. Dye were seated in a TrailR boat in the Ohio River and Glenn G. King was seated in an aluminum boat in the river; that the TrailR boat had a wood hull, 13' 5" × 4' 6" × 1' 5", and the aluminum boat measured 12' 5" × 4' 5" × 1' 4"; that the two boats went through an open wicket of Dam 41 on March 20, 1949, around four o'clock P. M., and that the three men were drowned in consequence of their boats going through the open wickets.

An important exhibit in the case is a map of the dam and the adjacent river area prepared by the Corps of Engineers. Without printing this exhibit, it is difficult to describe the physical situation portrayed by the map. In attempting to do so we shall advert largely to the findings of the District Court.

Dam 41 is an L-shaped structure, beginning at a point on the Indiana shore and running perpendicularly across the river approximately 1,500 feet, at which point the dam turns and parallels the river westwardly for around 6500 feet to a hydroelectric plant built and operated by Louisville Gas & Electric Company and extending from the extreme western end of the dam to the shore line of Kentucky. The locks through which boats pass are located adjacent to the Kentucky shore.

That part of the dam paralleling the river is composed of boule weir so constructed that the wickets can be raised or lowered to control the flow of water in the section of the river east of the dam. That portion of the dam beginning at the Indiana shore, which extends perpendicularly to the river for 1,500 feet, has 860 feet of wickets near the center of the dam. This section can be opened to permit navigation. The stem of the L is constructed of a two-hundred-foot section of fixed concrete weir at its end farthest east, where it joins the base, and from that point west is constructed of boule weir surmounted by movable wickets. These wickets, when opened, permit water to flow over the boule weir from the upper to the lower pool of the river — a drop of some seventeen to twenty-one feet.

The Pennsylvania Railroad Bridge extends from a point on the Indiana shore approximately 120 feet downstream westwardly from the end of the dam and southwardly across the river, converging at a point in Louisville, Kentucky, between Fourteenth and Fifteenth Streets. At the time of the accident, there was attached to the Pennsylvania Railroad Bridge a sign, six feet high and thirteen feet wide, with letters thereon four inches wide and eighteen inches high spelling out the following words: "Danger — High Dam." Approximately a mile west of the point where the decedent King launched his boat there was located, according to the finding of the District Court, a sign at the pumping plant of the Louisville Water Company bearing the words, "1200 feet of dam down — Use Locks." This sign was eight feet, two inches, high, and eight feet, four inches, wide. The District Court found 107 F.Supp. 8, further, that "no other signs or warning except the signs on the Pennsylvania Railroad bridge and at the Louisville Water Company's pumping station warned of the presence of the dam or the danger incident to the operation of the dam."

Around three o'clock in the afternoon, the small plywood boat occupied by the Dyes was launched on the Ohio River near the foot of Fourth Street in Louisville. The boat was equipped with oars and an outboard motor. King had proceeded in a small aluminum boat, which he had rented, from a point on the river at the foot of Indian Hills Trail, westwardly to the section of the river opposite Fourth Street where, apparently, he met up with and joined the Dye brothers. As found by the District Court: "There is no definite evidence from which it may reasonably be inferred that the decedents were familiar or unfamiliar with the existence and location of Dam No. 41."

With their two boats being held together, the three decedents, as found by the District Court, were observed drifting in the current of the river. The outboard motors with which the boats were equipped were not in operation. The boats drifted under the Pennsylvania Railroad Bridge at a point some 1,000 feet south of the Indiana shore and about 1,200 feet east of the perpendicular section of the dam. The two boats went through that part of the boule weir in which the wickets were lowered. There was no evidence as to why the boats were being held together or why their motors were not in operation. The District Court found that it was well known by the Corps of Engineers that small craft operated in the area above and below the Pennsylvania Railroad Bridge and that numerous other small boats were so operating on the afternoon of the day of the fatal accident.

It was found further that the sign on the Pennsylvania Railroad Bridge was visible for a distance of 3,000 feet; that about one and one-half feet of the dam extended above the surface of the water; and that the dam was visible for a distance of approximately 3,000 feet.

Appellants insist that the evidence did not warrant the finding that the sign on the bridge was visible from a distance of 3,000 feet. They emphasize the fact that the court did not find the maximum distance at which the words on the sign could be read. Moreover, appellants assert that the wording on the sign at the Louisville Water Company branch read, not as stated by the court, but thus: "Feet Dam Down — 1200 — Locks." Appellants dispute the statement that there was any competent evidence to support the finding that the dam was visible for a distance of approximately 3,000 feet.

The District Judge was evidently much impressed with the testimony of the lock master at the dam. In number nine of the findings of fact, the court said: "The Lock Master at the Dam No. 41, Peter B. English, convincingly testified that boats of the type and size used by the decedents could be operated with the use of oars within four hundred feet of the opening of the dam when twelve hundred feet of weirs were lowered and that experienced oarsmen could operate boats of the same type within two hundred feet of the opening of the dam without being endangered by the suction of the current through the wickets." The testimony of the lock master strongly conflicted with that of Chief Low of the Coast Guard, who had been officer in charge of the Louisville station since 1945. He asserted that when 1,200 feet of the wickets are open an ordinary boat operator cannot get out of the set of the water in that area; and that within five hundred feet of the dam it would take a very experienced operator to accomplish the same feat. The Chief gave logical reasons for his conclusions.

The testimony of Charles Millholan was also at complete variance with that of the lock master. He had worked on the dam for many years and had lived within one mile of it for...