Hodges v. United States

• Decision Date: 16 December 1948
• Citation: 98 F. Supp. 281
• Parties: HODGES v. UNITED STATES.
• Court: U.S. District Court — Southern District of Iowa

98 F. Supp. 281

HODGES v. UNITED STATES.

Civ. 209.

United States District Court S. D. Iowa, E. D.

December 16, 1948.

J. O. Boyd and Logan Huiskamp, Keokuk, Iowa, for plaintiff.

Maurice F. Donegan, U. S. Atty., Davenport, Iowa, Wm. R. Sheridan, Asst. U. S. Atty., Keokuk, Iowa, Cloid I. Level, Asst. U. S. Atty., Des Moines, Iowa, for defendant.

DEWEY, District Judge.

This is an action brought against the Government under the Federal Tort Claims Act and grows out of the unfortunate death of a child, James Martin Hodges, caused by his falling into a river lock owned and operated by the Government at the Keokuk Dam at Keokuk, Iowa.

The Act of Congress under which the action is authorized is Sections 1346, 2674, and Section 2401 of Title 28, U. S. Code.

The parties accept the law, not only as authorizing suits against the United States on tort actions as against the Government in the same manner and to the same extent as private individuals would be liable under like circumstances as limited by the Act, but that laws of the State where the action arose are applicable.

The evidence does not disclose whether the deceased fell into the lock in Iowa or Illinois, but the parties in their arguments assume that it was in Iowa and, as under the laws of Iowa, the dividing line between states is the center of the river channel, it will be considered that the channel was in the center of the lock and, as the boy fell into the lock from the Iowa side of the lock, the Iowa law prevails.

The facts are not greatly in dispute. The deceased comes from a large family. On Aug. 19, 1947, two or three of his older brothers had gone down to the lock for their own entertainment and for fish, and this young chap, who was under 5 years of age, and a brother about six, had run away a time or two and finally succeeded in escaping from the controls at home and made their way upon an abutment on the west side of the lock proper. They had not been there very long when the accident occurred.

The federal works at Keokuk, of which the lock for the passage of the boats is a part, consists of a dam across the river with openings therein which permit the force of the water to turn large turbines and generate electricity which is transported on heavy wires to St. Louis.

On the Iowa side of the dam is a large drydock and adjoining it is the lock proper. The dam across the river extends in an easterly and westerly direction and the lock is, for descriptive purposes, north and south. At the north end of the lock the water is held back by a gate operated vertically by machinery, and when the lock is to be opened at the north end, the gate is dropped. This gate is about six or eight feet in width and often when it rises from the water fish are flapping on its top side.

The lower or south end of the lock is closed and opened by two large swinging gates. When these gates are not in use they fit in recesses in the cement abutments at the side of the lock and are operated by machinery to open and close them as needed. When the lock is closed the water escapes from the sides by means of subterranean passage ways and as the water is lowered a boat going down stream is lowered until it is on a level with the water below it when the gates at the south end are opened and the boat proceeds down the river. Conversely, when a boat is passing up the river, it enters the lock at the south end and then the gates at that end are closed and the water is permitted to flow therein by subterranean channels from above which raises the water level and the boat to a level of the lake which is north of the dam.

When the water is in the lock at a level with the water below the dam, it is about 40 to 45 feet below the top of the cement abutments on the east and west of the lock. The abutment on the west of the lock and inside the State of Iowa is some 30 or 40 feet in width (the evidence does not disclose this item and I take this fact from the photographs introduced in evidence), and is a part of a passageway from the street to the power house containing the machinery which generates the electricity and wherein are stationed officers and employees.

The plats introduced in evidence as Exhibits 9 and 10 show the general location of the lock chamber, the drydock and the approaches thereto. On Exhibit 9 is shown the access walk from Water Street in the city of Keokuk to the south end of the west abutment to the lock. Those having business or a desire to visit the power house can evidently use either the west or east abutment, passing across the lock at the north or south end upon the gates when they are not in use and continuing to the unused power house and finally to the power house itself. The access walk, as I understand the evidence, is open at all times.

The abutment to the west, which is a part of the passageway so described, is used by the public generally and attracts many people, old and young, as it is a very advantageous location as a lookout to observe the many activities on the river and to watch the passage of boats through the lock. It is also used by employees going to and from the power house as well as by the public generally who either have business there or go to the power house for pleasure and educational purposes.

There is no barrier of any kind to the passage of people from the street up the stairs to this abutment on the west side of the lock and across this abutment lengthwise towards the power house. There is a rail next to the lock. This guard rail is about 3½ feet from the edge of the lock and at the gates it is about two feet from the edge. At the north and south ends of the lock where the passage is across the gates, there is a chain which is strung across the walk to prevent the passage of people across the top of the gates when the gates are open.

These railings are about three feet high and are constructed of 2 inch pipe, the first being about 18 inches from the ground and the second, or top one, being about 18 inches from the lower pipe. No other barrier is on the abutment west of the lock and there is an open space on the entire surface of the abutment; and on its east edge there is a sheer drop when the water is low in the lock, as I have said, of about 40 to 45 feet.

The plaintiff has plead and the defendant admits the following:

"Paragraph 4. That at the time and on the occasion hereinafter described, the Defendant, United States, through its Army Engineers, their agents and employees, was operating on the west bank of the Mississippi River adjacent to the City of Keokuk, Iowa, and at a place very near the residence of Complainant's decedent a lock, dry dock, boat building and repair shops and appurtenant works; that said lock, dry dock, shops and appurtenant works were instrumentalities used and operated by the defendant as a whole in the aid of navigation up and down the Mississippi River.

"That said works consisted of boat building and repair shops containing machinery and adjacent thereto piles of lumber, rope and other boating supplies; a large dry dock into which boats, both large and small, could be placed on iron racks for access in making repairs by means of filling and emptying said dry dock of water to aid in the manipulation of said boats in the matter of being examined and repaired; a large lock, wide, deep and long by means of which boats, barges, tugs and other water craft could be passed from a higher water level above to a lower water level below. * * *

"That the river traffic caused much activity in and about the lock, — such as the raising and lowering of the water in said lock, the opening and shutting of the gates, or raising the upper gate and as it would come to the surface there would be fish almost invariably flapping thereon, which fish could be picked up by visitors or spectators, including children, who might be there, the boats, barges, tugs and other water craft in movement for passage through said lock, etc. * * *"

The deceased was not seen to fall from the abutment, but it is known that he was on the Iowa abutment and at the south end of the lock a few minutes before his brother screamed and the body was seen at the southwest corner of the lock. His hand appeared above the water for a very short time and then disappeared. The attendants did all that they could in the way of throwing him a life buoy and using grappling hooks to raise the body as soon as possible, but despite all of their efforts and those of the fire department to resuscitate him, he was dead when his body was raised from the water.

At the time of his death, August 19, 1947, he was four years, seven months and 27 days of age and was a strong active boy in good health with an active and alert mind.

There does not seem to be any question from the evidence but that the public generally was invited to use the top of this abutment on the west side of the lock and children played there, more especially during their vacations in the summer time. On the day of the accident one of the employees told the boys that they ought to go home as they might get hurt, but he says he didn't tell them they had to leave, as he understood the place was a public one on which people had the right to congregate and use. It therefore appears that the public was expected and welcomed on this abutment and that it was used to a large extent by sightseers both old and young.

Plaintiff claims that the Government was negligent in permitting children to be on and about the premises and in not erecting barricades to keep children away from the walls of the lock.

Having determined that the applicable law is that of the State of Iowa, it is necessary to first determine from the evidence and the law the relationship of the deceased to the Government at and immediately prior to the time of his death.

Iowa appears to make a sharp differentiation in the duty of the owners of real estate to different classes of persons who may be on or about the same. They...