Greenwood v. Town of Westport

• Decision Date: 08 March 1894
• Docket Number: 915.
• Citation: 60 F. 560
• Court: U.S. District Court — District of Connecticut
• Parties: GREENWOOD et al. v. TOWN OF WESTPORT.

60 F. 560

GREENWOOD et al. v. TOWN OF WESTPORT.

No. 915.

United States District Court, D. Connecticut.

March 8, 1894

Carpenter & Mosher and Samuel Park, for libelants.

C. R Ingersoll and Carter Thompson, for defendant.

TOWNSEND District Judge.

This is a libel in personam against the town of Westport, in the district of Connecticut, to recover damages to the steam barge Hebe, alleged to have been caused by the negligence of said town in not seasonably opening a drawbridge across Westport river, by reason whereof said barge was delayed until she was carried away by the ebb tide, and struck the bottom, and sank. The defenses are denial of negligence, and denial of liability even if there was negligence. The question of jurisdiction has already been presented upon exceptions, and decided adversely to the defendant. 53 F. 824.

The defendant town is located on the banks of Westport river which is navigable for steam barges such as the Hebe only at or about high tide. In said town, and some 250 to 300 feet above said drawbridge, are certain stores and wharves. At a short distance beyond this point the river becomes a mere shallow stream, and is not navigable. A drawbridge was originally built across said river at the point where the present bridge is located, under a charter granted in 1796 to a private corporation. Said charter provided that the company should make a draw in said bridge 'sufficient to accommodate all the navigation which may pass up and down said river,' but nothing was said about operating said draw. In 1857, said corporation abandoned said bridge, and the defendant town then took charge of, and has ever since maintained, it. No obligation was ever imposed upon any one to operate said draw, and, down to 1880, the persons in charge of vessels passing through said bridge opened and shut said draw. In 1880, complaint was made that persons passing through said draw did not fasten it properly, and a draw tender was appointed at the town meeting to take care of the draw. After that time a draw tender was appointed at every annual town meeting until recently, when the selectmen took charge of the matter, and employed the draw tender. Such draw tender, with the aid of the selectmen and others, has opened the draw since 1880, and has been paid for such services by the town. It does not appear that any notice of the proposed appointment of such draw tender was inserted in the warning of such meetings, but this does not seem to be material, for even if such notice might originally have been necessary, the action of the town and of its selectment since 1880 would constitute a ratification of such appointment. Town of Rocky Hill v. Hollister, 59 Conn. 434, 22 A. 290. A further reason why this point is not material is to be found in the fact that the alleged omission to act, or acts of misfeasance, occurred on this occasion when the draw was in the charge of the first selectmen and agent of the town. The town of Westport has never been required by any legislative act to provide an attendant to operate said draw. In other cases where such operation is required, a special provision to that effect has been inserted in the charter for such bridge. The town has provided various kinds of draws at said bridge. The present one was put in some years ago. It is a substantial iron draw, which swings in the arc of a circle, is fastened at the ends, and is so locked, when closed, that it can only be opened by a person who understands how to operate it. The commerce above said bridge is confined to a few vessels delivering coal at the wharves aforesaid in the town of Westport.

On the evening of October 27, 1891, said steam barge Hebe, 97 1/2 feet long and 17 1/2 feet beam, and drawing about 6 feet 4 inches, with Sylvester Greenwood, her master and owner, in charge, having 205 tons of coal on board, consigned to Taylor's dock, just above said drawbridge, reached Saugatuck, some distance below Westport, on said Westport river, and lay there overnight. On the following morning, at about quarter past 7, she started for Taylor's dock. It was a fair day, and there was a moderate wind from the northeast. She passed through the lower bridge on said river, and, when about half a mile below the upper drawbridge, where the accident occurred, Greenwood commenced to blow his whistle as a signal to open the draw, and kept up the signaling for a considerable time, and until he was close to said draw. Greenwood was an experienced navigator, and had charge of and managed the barge. He had been up this river with similar loads of coal on four or five previous occasions, and was familiar with the channel, and the course and current of the river, and the bottom. He knew that, in order to get through said draw, it would be necessary to reach it when the tide was rising, or at about high water, which would be between 8 and 9 o'clock. It was the first day of the apogee tides. He had always heretofore found the draw open when he reached it, or within a couple of minutes thereafter. The draw tender was not at the drawbridge that morning before or at the time of the accident.

The facts stated above are admitted or proved. As to the state of the tide, and the time when the barge neared the draw, and what then occurred, there is the usual irreconcilable conflict of testimony. Samuel B. Wheeler, the town agent and first selectman, having heard the signals to open the draw, came down on the bridge, and, having secured the assistance of several persons, tried to open the draw. The lever would not move, as the draw was locked underneath. They got a boat, unlocked the draw, and finally succeeded in opening it. Meanwhile the barge had slowed up, and was waiting at a distance of about 75 feet from the drawbridge. When it was opened, she came up into the draw, and, in attempting to go through, and when about half way through, struck and sank. By reason of this stranding, her timbers and sides were broken, and she was badly twisted and strained. The libelant claims that he was delayed about three quarters of an hour by reason of the negligence of the defendant in failing to open the draw, and that, while there would have been an abundance of water if the draw had been seasonably opened, the tide had so fallen while he was kept waiting that, when he got up into the draw, it was impossible to pass through. The defendant denies that it was negligent, and claims that the libelant was not delayed; that the Hebe did not reach the drawbridge until the tide was so low that she could not have passed through; that the libelant was incapable and reckless and 'intoxicated or rattled,' and so steered the barge improperly; and was negligent in not laying his vessel on the mud flats, instead of trying to pass through; that the defendant was not bound to open the draw; and that it would have been better for libelant and the public travel if defendant had not opened it. The defendant further shows that neither the libelant nor his engineer was properly licensed. The question as to the obligation of the defendant to operate said draw, and its liability for negligence, will be discussed later.

Assuming such obligation to exist, was the town negligent? The only time when said river was navigable for ordinary vessels on said day at said drawbridge was at or about high water. At that time the draw was locked, and fastened at the ends. The draw tender was away. While the town agent and the persons assisting him were opening the draw, the Hebe was delayed for a considerable time, and when she struck, half way through the draw, the tide had fallen at least six inches. It seems to me clear that the town was negligent, and that the injury complained of resulted from such negligence. The town having maintained said drawbridge, under the charter of 1796, which provided that there should be a draw therein sufficient to accommodate all the navigation which should pass up and down said river, and having voluntarily assumed, since 1880, the operation of said draw, failed to exercise the degree of care proportioned to the responsibility assumed and the dangers involved which the law requires under such circumstances. Pennsylvania R. Co. v. Central R. Co. of New Jersey, 59 F. 190, affirmed Id. 192; Wiggins v. Boddington, 3 Car. & P. 544; Blanchard v. Steamboat Co., 59 N.Y. 292; In re Pratt, 24 F. 335, 25 F. 799; Edgerton v. Mayor, 27 F. 230; Weisenberg v. Town of Winneconne, 56 Wis. 667, 14 N.W. 871.

The next question is, was the libelant negligent? The only charges of negligence supported by evidence are in not laying the barge on the flats, and in navigating her in the draw. The preponderance of testimony as to the fall in the tide when the barge struck, together with the other evidence as to the time of high water, shows that the barge could have gone through the draw if she had not been delayed. Guyer, one of defendant's witnesses, thinks it took half an hour to open the draw. Kemper, another of defendant's witnesses says the tide appeared to have fallen six inches or more when the barge struck. Even the absent draw tender, who swore there was not water enough to go through, admits that the average tide under the draw rises and falls about six feet, and that when you can get over the shoal ground below, and to the bridge, you can get through. It is claimed that when libelant found the tide had begun to fall, and the bridge was not opened, he should have backed out and lain on the flats for another tide, as he had done on a former occasion. The libelant claims that he thought he could get through, even then; that he could have done so if he had had an inch more water; that he had been within 75 feet of the draw for 20 minutes before the tide began to fall; and that he could neither turn around...