Hines v. Eastern S.S. Lines Inc.

• Decision Date: 28 May 1923
• Parties: HINES, Director General of Railroads, v. EASTERN S. S. LINES, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 385

139 N.E. 823

HINES, Director General of Railroads,

v.EASTERN S. S. LINES, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1923.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action of tort by Walker D. Hines, Director General of Railroads, against the Eastern Steamship Lines, Inc., for injuries to a bridge over the Cape Cod Canal, of which the Director General had taken possession, and over which he had assumed control. Verdict for plaintiff for $25,017.54 and defendant brings exceptions. Exceptions overruled.

The case was referred to an auditor, who found that on the facts, if unexplained, the presumption was that defendant's vessel was negligently managed, that no negligence on the part of the canal company or the Director General had been shown, and that defendant had not overcome by its evidence the presumption of negligence on its part. Defendant's motion to recommit the report was overruled, and defendant took exceptions to the admission and exclusion of evidence, the giving and refusal of requested rulings, and certain parts of the charge as given.

Defendant's tenth request was for a ruling that it was not incumbent on defendant to show that the vessel in question or other vessels ever became unmanageable on other occasions. Nos. 34, 35, 37, 38, 39, and 41 were for rulings concerning the duties of the canal company and the Director General of Railroads in maintaining the canal. Nos. 24, 26, 27, 29, 30, 31, 42, and 43 wee as follows:

No. 24. Provided you find that those in control of the management of the steamer used due care in the operation of the steamer at the time of the first sheer to the north bank, and down to the time when the captain ordered full speed astern, then the question as to whether or not the captain was negligent in not going ahead full speed in the hope of passing through the draw opening, instead of backing the ship, is not a question for you to determine, because all that can be asked in the management of the steamer is that the persons in charge of her shall use their best judgment at the time of an emergency of this character; and if you find that the persons in charge of this ship did use their best judgment in this emergency and under these circumstances, your verdict must be for the defendant.

No. 26. The plaintiff cannot recover, even if the jury should find that the defendant was negligent either in the equipmentof the steamer or management or conduct of the steamer, if the jury shall find that the negligence of the plaintiff directly contributed to cause the collision.

No. 27. If the jury find that the plaintiff had invited the steamer into the canal, and that the defendant had paid for the passage of the steamer through the canal the toll demanded by the plaintiff for such passage, then the steamer was rightfully in the canal, and the plaintiff cannot hold the defendant responsible for a collision with the bridege if the jury find that the failure of the steamer to properly mind her helm was due to shoals in the canal.

No. 29. Upon weighing all the evidence, if you find that the steamer, at the time when she swung towards the south bank, refused to mind her starboard helm, and was then over a place in the bottom of the canal which had shoaled to a less depth than 25 feet at mean low water, and if you find that the steamer was in a position where she needed quick action from her rudder, and if you find that the action of the rudder was retarded by shoals under the steamer's bottom, then you will find for the defendant.

No. 30. If you find that the water was shoaler than was safe and convenient for navigation in front of the Sagamore bridge, and that when the vessel broke away from the north bank of the canal it came over this shoal area, and that the shoalness either prevented the ship from minding her helm, or made its handling more sluggish, and by so doing contributedto cause the collision, then the defendant is not responsible to the Director General of Railroads for the damage done to the bridge.

No. 31. By its charter the Boston, New York & Cape Cod Canal Company was obliged to maintain throughout the canal a depth of 25 feet at mean low water. This charter was in force and had been in no way modified at the time of the collision. If you find that the defendant was in the exercise of due care at the time when the first sheer occurred to the north bank, and that the defendant's servants were using reasonable and proper means to get the ship's bow away from the north bank, and that a sheer occurred within such proximity of the Sagamore bridge that the defendant needed for the proper management of the steamer water of a sufficient depth so that the rudder of the steamer would act as efficiently as possible; and if you find at the time when the steamer's rudder was put hard-astarboard that the steamer had passed down into a position where she was over shoals in the canal where the depth of water was less than 25 feet at mean low water, and that the shoals were the cause of the steamer's being sluggish about minding her starboard helm, and helped cause the collision, then you must find for the defendant.

No. 42. If you find that the plaintiff or his agents knew at the time the Herman Winter entered the canal that there was a shoal area extending practically over the full width of the canal; also extending from a point 600 feet west of the Sagamore bridge up to the bridge itself, and that this shoal area was less than 25 feet at mean low water, and that it tended to make the steering of the steamer sluggish and less efficient than it would be if the depth was 25 feet or more at mean low water, then the plaintiff, the Director General of Railroads, assumed the risk of any damage to the bridge which might result from the collision of the Herman Winter with the bridge which you find was caused in whole or in part by the canal.

No. 43. The Director General of Railroads when he took over the canal on July 25, 1918, and appointed Mr. Colbeth manager, and Mr. Dunbar Chief Engineer, became charged with any knowledge which Mr. Colbeth and Mr. Dunbar had with reference to the conditions of the canal. If there were defects in the canal of which Mr. Colbeth and Mr. Dunbar had knowledge, the Director General was charged with this knowledge; and if being so charged with knowledge of such defects, he invited the Herman Winter to pass through the canal, upon payment of tolls, he assumed the risk of damages to the canal, its appurtenances, and the bridges over it, which might be caused by such known defects.Elias Field, of Boston, for plaintiff.

C. A. Hight and George S. Selfridge, both of Boston, for defendant.

DE COURCY, J.

The Director General of Railroads brought this action of tort to recover for injuries to the Sagamore bridge over the Cape Cod Canal, caused on July 31.1918, when a steamer owned and operated by the defendant collided with the bridge.

[1][2] The case was argued on the merits on December 8, 1922. Subsequently, at the request of the court, counsel filed briefs on the question whether by reason of the federal Act of February 8, 1899 (30 U. S. Statutes at Large, 822, c. 121 [U. S. Comp. St. § 1594]), the resignation of Mr. Hines as Director General, and the failure to substitute his successor, Mr. Payne, or the present incumbent, Mr. Davis, within the time prescribed by that act, has caused the action to abate so that it cannot now be prosecuted to final judgment on behalf of the United States.

It is by no means clear that Congress intended the act of 1899 to apply to such a case as this, where the right or duty upon which the action is founded is not personal to the officer named as a party, but is one of the body politic to which the office is attached. Thompson v. United States, 103 U. S. 480, 26 L. Ed. 521;Knights v. Treasurer and Receiver General, 236 Mass. 336, 128 N. E. 637. Even if an action would have abated at common law when it was brought against an officer of the United States, on the death of the officer, because suits against the sovereign may be maintained only in accordance with the terms of its express assent, it does not follow that an action brought by the United States through a public officer, to protect its property from injury, would have abated. And no case has been called to our attention where the act of 1899 has been applied in such a case. See Cotton v. United States, 11 How. 229, 13 L. Ed. 675;Pooler v. United States, 127 Fed. 519, 62 C. C. A. 317.

But even assuming that this action came within the operation of the 1899 act, all doubt as to our jurisdiction to decide the case has been removed by the act of Congress approved on March 3, 1923, amending section 206 of the Transportation Act of 1920. By its express provisions the present action may be ‘prosecuted to final judgment. * * * substituting at any time before satisfaction of any such final judgment * * * the successor in office.’ We deem it unnecessary to here consider the statute beyond calling attention to its language, and to the case of Sack v. James C. Davis, Director General, 139 N. E. 819, decided at this session, where it was fully discussed. The contention that this statute deprives the defendant of any vested constitutional right in our opinion is not tenable.

As to the merits: The Herman Winter was a freight steamer, 288 feet long, 41 feet beam, and fitted with a left-hand propeller. She left New York about noon July 30, 1918, drawing 15 feet of water aft and 13 feet 9 inches forward, and arrived at the Buzzards Bay entrance of the dredged channel of the canal some time after midnight. Acording to the auditor's report she passed through the draw of the Buzzards Bay or railroad bridge in the canal proper at 1:15 in the morning of July 31; passed through the Bourne bridge at 1:18 a. m.; and after stoping her engines at 1:16, and running them slowly at 1:17, arrived at the Sagamore bridge, 5...