Ford Motor Co. v. Bradley Transp. Co.

• Decision Date: 11 April 1949
• Docket Number: No. 10738,10739.,10738
• Citation: 174 F.2d 192
• Parties: FORD MOTOR CO. v. BRADLEY TRANSP. CO. BRADLEY TRANSP. CO. v. FORD MOTOR CO.
• Court: U.S. Court of Appeals — Sixth Circuit

174 F.2d 192 (1949)

FORD MOTOR CO. v. BRADLEY TRANSP. CO. BRADLEY TRANSP. CO. v. FORD MOTOR CO.

Nos. 10738, 10739.

United States Court of Appeals Sixth Circuit.

April 11, 1949.

Sparkman D. Foster, of Detroit, Mich. (Sparkman D. Foster, Charles J. Fellrath, Duane D. Freese, and Allan B. Lutz, all of Detroit, Mich., on the brief, and Wm. T. Gossett, of Dearborn, Mich., and Foster & Lutz, of Detroit, Mich., of counsel), for Ford Motor Co.

Lucian Y. Ray, of Cleveland, Ohio (Lee C. Hinslea and Lucian Y. Ray, both of Cleveland, Ohio, and Percy J. Donovan, of Detroit, Mich., on the brief, and Leckie, McCreary, Schlitz & Hinslea, of Cleveland, Ohio, Beaumont, Smith & Harris, of Detroit, Mich., of counsel), for Bradley Transp. Co.

Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

The instant appeal and cross-appeal attack a judgment in an action at law growing out of a collision at the plaintiff's River Rouge plant between a steamer owned and operated by the defendant and a coal and ore unloader belonging to the plaintiff.¹

The complaint, in addition to claiming damages for the destruction of a Hulett unloader, averred that the plaintiff's Mead-Morrison coal bridge was struck and damaged, and that substantial damage was done to the track rails, snubbing post, concrete wall, concrete on the face of the dock, railroad tracks, the hot rail and guard fence and other portions of the dock. It was also averred that damage was incurred due to the loss of the use of the Hulett, causing delay in the unloading of plaintiff's boats.

The District Court, trying the case without a jury, entered judgment for the plaintiff in the amount of $201,227.69.

Plaintiff contends that the judgment does not compensate it for the loss sustained. Defendant contends that it was not guilty of negligence in the navigation of its steamer; that the plaintiff was guilty of contributory negligence as a matter of law, and that if the defendant is liable, the court committed reversible error in its assessment of damages.

The facts are fully set forth in the opinion and findings of fact of the District Court, 74 F.Supp. 460, and will not be repeated here in detail, the following being sufficient background to present the questions argued in this court.

On the night of November 29, 1944, the defendant's self-unloading steamer Carl D. Bradley struck and knocked over the plaintiff's Hulett coal and ore unloader upon plaintiff's dock at the boat slip which connects with the River Rouge at Dearborn, Michigan. The record shows that the Hulett was used as a part of the plaintiff's production unit consisting of a coke oven, blast furnace, storage bins, the dock, the slip and the turning basins. The Hulett was used in servicing the open-hearth blast furnace, the foundry and the power-house with coal, limestone and sand brought in by water. A few of the boats which serviced this production unit were self-unloaders, but for the most part the unloading and transfer of the materials into the transfer bins was done by two Huletts and a Mead-Morrison coal tower, the material being conveyed into the coke ovens and hoppers of the blast furnace from the transfer bins. The record shows that over three million tons of the materials in question were handled in 1944 on the unloading docks by the Hulett unloaders and the Mead-Morrison coal tower.

The two Huletts were identical in structure, being 80 feet in height, weighing 550 tons, and having a span of 70 feet. They were based at the rear on a concrete wall, and extended across and above three sets of railroad tracks and a roadway. The legs of the Hulett rest upon tracks or rails so that it may be moved up and down the dock. Its speed is some 90 feet a minute. The Hulett lifts the cargo by a clam bucket and dumps it into small cars. The Mead-Morrison coal tower also has a clam bucket, which is operated by steel cables. It is mobile, and travels upon the same rails as the Huletts. The Huletts were set back some 15½ inches from the edge of the concrete portion of the dock. On the night of the accident the two Huletts were 100 or 150 feet apart, and the Mead-Morrison was approximately 10 feet south of the south Hulett.

On the afternoon before the accident the Bradley arrived at the plaintiff's dock, which is located on the east side of a slip 250 feet wide leading off from the River Rouge in a generally northerly and southerly direction. The vessel was then unloaded, the operation being completed about 11:15 p. m.

Plaintiff's dock is some 2,594 feet long. The north end of the slip is closed, and large vessels leaving the dock either back or are pushed into the turning basin at the south end of the slip where the channel widens out and enters the River Rouge.

The Bradley is 638.9 feet long, and has a beam of 65 feet. During the unloading the vessel lay with her starboard side to the dock, and the Tug Oregon, which was to assist the Bradley in departing from the slip, was at the Bradley's port bow, facing south. In accordance with instructions from the master of the Bradley, the tug held the Bradley's bow against the dock with her stern angling slightly away from the dock, and worked slowly ahead. The master of the Bradley was experienced, and three experienced watchmen, two of them on the forecastle head, were helping to conduct the operation. The Bradley was proceeding at the rate of one to two miles per hour. As she came abreast of the north Hulett, the lookout reported that her bow was about three feet from the Hulett. As the Bradley passed the south Hulett the machine toppled over the vessel. The District Court found in effect that the starboard bulwark of the Bradley had overhung the dock line and had struck the Hulett because of the negligent navigation of the Bradley. The Mead-Morrison coal tower and certain parts of the dock and equipment thereon were also injured in the accident.

Defendant does not contest the finding of the District Court that its steamer struck and toppled over the south Hulett, thereby causing the damage. It claims that it was not negligent in its maneuvers and that the plaintiff was guilty of negligence as a matter of law by reason of (1) its failure to move the Huletts out of the zone of danger, (2) its failure adequately to light the dock, and (3) permitting the Huletts to remain on the dock in a locked condition.

We think the District Court's findings of fact upon the question of negligence are not clearly erroneous, Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., and that its conclusions are sound.

The bow of the Bradley had an unusually broad flare. The trial court found that when its stern was 15 feet out from the dock the bow had an overhang of 24 inches, and when it was 25 feet out it had an overhang of 30 inches, near the point where the bead of the forecastle came. Gray paint, apparently from the bulwarks of the Bradley, was found on the Hulett girder. The master knew, or should have known of the possibility of overhang. The record supports the conclusion of the District Court that the master failed properly to take the overhang into account. He knew, or should have known, that with the particular maneuver which was attempted, involving the angling of the stern away from the dock, an excessive overhang might develop and damage property on the dock. He knew that the Huletts were stationary within the dock line. One of defendant's experts admitted that it is a well known principle of navigation that where a ship is moving in a slip and the master permits the ship to overhang the dock and damage something inside the dock line, negligence exists. Cf. Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S. Ct. 653, 35 L.Ed. 270. The master stated that he knew that with his vessel's stern at a point abreast the after chocks on the starboard side 15 feet from the dock, the ship would be bearing against the dock just aft of the break on the forecastle deck. He knew there was an 18 mile an hour wind from the west or northwest, that dense smoke was coming from the tug, and should have known that this would, as it did, prevent his lookouts from keeping an adequate watch. This was in violation of a primary rule of navigation. Dahlmer v. Bay State Dredging & Contracting Co., 1 Cir., 26 F.2d 603; United States v. Black, 1 Cir., 82 F.2d 394. In fact one of the watchmen on the forecastle ran behind the cabins to avoid the smoke. The lookouts failed to report to the master their difficulty with the smoke, and by the time the third mate on the bow saw the dangerous proximity of the second Hulett and ran back to notify the tug to pull the bow out, it was too late. The steamer struck the Hulett and it toppled over.

While under Michigan law, applicable here, the doctrine of res ipsa loquitur does not prevail, Thurkow v. City of Detroit, 292 Mich. 617, 621, 291 N.W. 29, the Michigan courts have held that the rule should not be extended so as to deny a right of action where there is room for balancing the probabilities and for drawing reasonable inferences better supported on one side than the other. Cf. Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081. In cases tried without a jury, under Michigan decisions the court may draw legitimate inferences from established facts, Grimes v. King, 311 Mich. 399, 18 N.W.2d 870, and negligence may be inferred from circumstances which place the case within the field of legitimate inferences from established facts. Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728. Here the fact that the Hulett was more than a foot inside the dock line, that the dock was lighted, and that the master of the Bradley knew that excessive angling of the stern away from the dock, together with the broad flare of the Bradley's bow, might cause damage to persons and property on the dock, removes the case from the realm of speculation. Cf. Thurkow v. City of Detroit, supra, 292 Mich. 617, 622, 291 N.W. 29. The...