Feige v. Hurley

• Decision Date: 12 April 1937
• Docket Number: No. 7180.,7180.
• Citation: 89 F.2d 575
• Parties: FEIGE v. HURLEY.
• Court: U.S. Court of Appeals — Sixth Circuit

89 F.2d 575 (1937)

FEIGE v. HURLEY.

No. 7180.

Circuit Court of Appeals, Sixth Circuit.

April 12, 1937.

W. S. Heidenberg, of Louisville, Ky., for appellant.

R. P. Hobson, of Louisville, Ky. (Woodward, Dawson & Hobson, of Louisville, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

On July 3, 1934, about 10 p. m., Arthur Fred Feige, with three companions, was riding in a canoe on the Ohio river near Six Mile Island, when they were struck by a motor boat owned and operated by appellee, William Parker Hurley, and Feige lost his life in the collision. Berner Feige, administrator of the estate of the deceased, brought suit in the Jefferson circuit court of Kentucky against appellee to recover damages for the death of his intestate. Thereupon appellee filed a libel in the United States District Court seeking to limit his liability to the value of the motor boat under title 46, § 183, U.S.C. (46 U.S.C.A. § 183), and appellant answered and filed a cross-libel seeking damages for the death of his intestate.

Upon the hearing the court discharged appellee from appellant's claim.

Appellant's objection to the jurisdiction was untenable. The statute applies to "any vessel." Appellee's motor boat was a 15-foot Chris-Craft with a 70-horsepower motor, capable of going 35 miles per hour. It was within the statute. See Spencer Kellogg & Sons v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903; The Oneida, 282 F. 238 (C.C.A. 2); Warnken v. Moody, 22 F.(2d) 960 (C.C.A. 5).

The evidence was that Feige and another young man, Virgil Fontaine, procured a canoe at a boat club on the Kentucky side of the river about 8:30 or 9 o'clock and in company with Miss Clarkson and Miss Banks paddled slowly upstream, passed the Richmond Club, then crossed the river and turned about 200 yards above the foot of Six Mile Island and were headed back downstream but diagonally toward the Louisville Boat Club on the Kentucky side. The canoe was being paddled by Feige sitting in the stern and by Miss Banks in the bow seat. Miss Clarkson was sitting near Feige and Fontaine was seated further forward. The canoe, 16 feet long, was painted an aluminum color with a black streamline along the top. The party had been singing intermittently but it is not clear whether they were singing immediately before the accident. The canoe was without a light and the weight of the evidence is that the night was dark although there was limited visibility. The sky was clear and the stars were out but the moon had not risen.

Appellee testified that earlier in the evening he had been a member of a picnic party of eight people some of whom he had taken up to Goose Island in the motor boat; that before dinner and three hours before the accident he had had two highballs but that he had had no liquor thereafter; that after the picnic he dropped two of the party at a boat club and drove back up the river with a Miss Sanders to ride the waves of the "Idlewild" which had just passed; that they went upstream about a quarter of a mile and then over toward the Indiana shore to circle and come into his slip on the Kentucky side; that as he was driving toward the Indiana shore at not over 22 or 23 miles an hour he saw the canoe exactly ahead of the boat and not over 15 feet away; that if he had gone straight ahead he would have cut it in two at the middle; that he turned the wheel to the left, downstream, as hard as he could, slowed the motor and put it in reverse, although it was then too late to avoid striking the canoe.

Such are the outlines of the two streams of human activity which met in tragedy.

Appellee claimed to have struck the front of the canoe only with the stern of his boat but Feige in the stern of the canoe, who was an expert swimmer, was apparently badly injured, since he was seen in the water only momentarily before he went down. Miss Clarkson said that after the accident her back was "like a washboard" as though the propeller had passed over it. The other two were thrown into the water and the propeller cut a gash in both sides of the canoe about two feet from the bow. Appellee circled, threw a cushion to Fontaine, who was supporting Miss Banks, and jumped into the water but accomplished nothing toward the rescue. Miss Clarkson worked the canoe over to the boat and climbed in and the other two were rescued by the occupants of another canoe. While in the water appellee called to his companion to throw away a bottle of liquor that was in his boat.

The court found that appellee was without fault. Whether he was must be determined upon additional evidence now to be considered. His boat had a green light on the starboard and a red light on the port and a white light in front but he testified that the night was very dark; that the view in front of him was entirely blank up to the top of the trees on the Indiana shore and that the position of a boat in front could not be seen. It was the eve of the national holiday and there were many canoes on the river in the vicinity of the accident and many of them were without lights. Appellee admitted that he knew there were a good many canoes on the water but denied that he knew that any were without lights. However, he had worked in a campaign to require canoes to carry flashlights, and he must, perforce, have known of the danger of colliding with them. There was evidence that prior to riding the waves of the Idlewild appellee had been "cutting capers" in front of a boat club on the Kentucky side; that he had been driving at high speed and turning quickly; that he "was all over the river, he was just speeding around every place"; that he had been riding in circles before starting across the river at a high rate of speed on the run that terminated in the accident.

Several witnesses testified that the high speed of the boat across the river attracted their attention. One of them stated that he "could see the light cutting across the river at a terrific rate" and that he heard the impact at an estimated distance of two city blocks.

Appellee testified that at the rate he was running the boat threw a wave on either side 3 or 3½ feet high and that the boat had a windshield to protect the front from the spray.

There was considerable testimony as to how far the canoe could have been seen. One witness testified that he saw the wrecked canoe at a distance of 150 feet although he was perhaps aided somewhat by the lights on Hurley's boat, which was then nearby. Another said that visibility was generally good 100 feet or more and that he saw the wrecked canoe when he was approximately 200 feet away from it. Two others testified that in their opinion the canoe could have been seen by a proper lookout at a distance of 200 or 300 feet. And still another, a fisherman, said that on a night like that a canoe could have been seen 100 yards or better. Some of appellee's witnesses testified that objects on the...