Hill v. Winsor

• Decision Date: 04 September 1875
• Citation: 118 Mass. 251
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Richard Hill v. Arthur A. Winsor & others

118 Mass. 251

Richard Hill v. Arthur A. Winsor & others

Supreme Court of Massachusetts

September 4, 1875

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Suffolk. Tort against the owners of the steam-tug Argus for personal injuries sustained by the plaintiff, through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of Warren Bridge, a bridge between Boston and Charlestown. Trial in the Superior Court, before Bacon, J., who allowed the following bill of exceptions:

The plaintiff's evidence tended to show that the plaintiff, with other shipwrights and bridge builders, were, on December 12, 1872, employed by those in charge of Warren Bridge to repair its fender; that this fender was on the upper side of it about eighteen feet from the main structure, and extended from the draw to the wharf on the Charlestown side; that this fender, when perfect and in good order, consisted of large oak piles about fifteen inches in diameter at the top and about twelve feet apart, driven perpendicularly into the bed of the river, and two driven at a slight incline therefrom, trending down the river, and fastened to the lower part of the upright piles, and one trending up the river, whose top was fitted to, or intended to fit, the top of the upright pile, and to be fastened to it and to the cap thereon by spikes, the two piles trending down the river being of less length and diameter than the others; that this cap, consisting of yellow pine timber fifteen inches square, extended along the whole row of piles, resting upon the tops of the same; that on said day a foreman, with six workmen, including the plaintiff, were employed in repairing the fender; that they worked in three parties, each party standing on planks sustained by spikes driven into the upper spurshores or inclined piles of the fender, and about nine or ten feet above the water of the river, that it was then half tide, the river deep, and the ebb-tide setting down at the rate of three to four miles per hour; that the men were standing on the planks, and working in pairs fitting the heads of the upper inclined pile or spurshore to the cap and to the tops of the upright piles; that two of these men were towards the Charlestown side from the plaintiff, and were working at a pile about thirty feet east from the spurshore where several of the defendants' witnesses testified that the tug struck; that the plaintiff was at work, standing alone on a plank about sixty feet east from said spurshore, his companion having left him a short time previously; that, in order to fit his spurshore to the pile and cap, he had put in a brace about twelve inches long and three inches in diameter, to keep the spurshore and pile apart while he was at work; that two more workmen were fitting a spurshore about sixty feet east of the plaintiff, and the foreman of the work was on the bridge; that a portion of the spurshores were not completed and fastened to the caps; that a few minutes before the tug struck against the spurshore, she had come down to the entrance of the draw from some point above the bridge. The defendants' evidence showed that their vessel was about sixty-five feet in length; that while at the draw the master of the tug was requested to tow down a raft lying near the Fitchburg Railroad Bridge, and, finding it difficult or impossible to turn around, he backed his tug towards the Charlestown shore, but was not able to reach the raft, as the tide swept him down towards the fender of the Warren Bridge; that, as he backed over, he passed near the fender, and was seen by the workmen thereon who were visible from his deck.

The plaintiff's evidence further tended to show that when the master of the tug was nearly across the river, but could not reach the raft, and had drifted within a short distance of the fender, he started the tug with a view to return to the draw, and after running towards Boston, about her length, at the rate of three to four miles an hour, struck one of the upper spurshores of the fender at the point above described; that the blow jarred the fender for the distance of ninety feet; that the workmen, on the planks hung over the river, as soon as they heard the tug and saw it coming, sprung from their planks to reach the top of the fender, and all reached the cap except the plaintiff, who testified that, as he was at work, the first he knew he heard a puffing noise coming along, and he turned his head and looked, and saw the boat coming, and just as he threw his hands over his head to grab at the pile, so as to jump upon the cap, and just as he grabbed the top of the pile, she struck about three piles from where he was, and the moment she struck there was a jar that jarred the whole thing, and knocked his brace out, and the piles came right together as quick as a flash, and caught his fingers between the pile and the cap, and his knee ran in between the two piles below the cap, and there he was fast; that he never heard or saw the boat until he heard the puffing noise, and looked round and saw her coming; that after she first struck she came passing along, striking one pile and the other; that she went right along and struck the pile he was fast in, and she ran her whole length right up hard against it, and passed right on until she got one or two piles by him; that he was thus seriously injured.

Some of the plaintiff's witnesses testified that when they saw the tug returning towards Boston she was twenty feet from the fender, and coming at an angle towards the fender, and that she struck, when thus coming, one of the piles, which jarred the fender and occasioned the injury. Evidence was also put in that the rail of the steam-tug was about three feet above the water, and that she struck the spurshore with the rail on her counter. On cross-examination of the defendants, it appeared that the tug had a steam-whistle, which was not blown when she started back, nor at any other time; that the air was clear, the water smooth, and that the men aboard gave no warning of their approach.

For the defendants, evidence was offered tending to show that when the tug backed over to Charlestown she was caught by the tide, and was unable to return without running along the fender; also, that no notice was given them that it was out of repair, or any warning whatever that the fender was not in a proper condition for use; that the tug was drifted against the fender near the Charlestown side, and several hundred feet from the plaintiff; that, after waiting a few minutes the master started towards the Boston side, running along the fender, and being pressed by the tide against the piles, and being unable to get away from them, did not see the plaintiff at or before the time of the accident, and that the tug had worked slowly along by and against a number of the piles before rubbing against the pile referred to above as the point of collision in the plaintiff's testimony; and some of the plaintiff's witnesses, who were at work on the bridge, testified that they saw the tug at the fender, near the Charlestown side, and coming towards them. Some of the defendants' witnesses admitted that they saw from the deck of the tug, when at or near the Charlestown side, men at work on the fender, and some going ashore. Several masters of steam-tugs also testified that they had been thus caught by the tide, and got out of the bay by rubbing against the piles of the fender; and there was some evidence on the part of the defendants tending to show that this was...