Holland v. Brown

• Decision Date: 22 May 1888
• Citation: 35 F. 43
• Parties: HOLLAND v. BROWN et al.
• Court: U.S. District Court — District of Oregon

35 F. 43

HOLLAND v. BROWN et al.

United States District Court, D. Oregon.

May 22, 1888

William H. Effinger, for libelant.

Rufus Mallory, for Brown & McCabe.

John W Whalley, for receiver, Koehler.

DEADY J.

This suit is brought by the libelant as the administrator of the estate of Philip J. Holland, deceased, against the defendants J. A. Brown and William L. McCabe, as owners of the steam-launch Mikado, and Richard Koehler, as the receiver of the United States circuit court of this district, of the property of the Oregon & California Railway Company, the owner of the steam ferry-boat No. 2, to recover damages for the death of said Philip, alleged to have been causes by the concurring negligence and misconduct of the persons in charge of said boats, respectively, on October 26, 1886.

The owners of the Mikado and the receiver answer separately, and the controversy has assumed a three-sided form; each defendant practically admitting that the deceased came to his death by the fault of the person in charge of the other's boat. Brown and McCabe also allege that the negligence of the deceased contributed to his death; and both defendants allege that his death was no loss to his estate. The character in which the libelant sues is admitted.

From the pleadings and evidence in the case, and a view of the vicinity where the injury occurred, I find the following facts:

On and before October 26, 1886, the Oregon & California Railway Company was the owner of the steam ferry-boat No. 2, then running under the direction of the defendant Koehler receiver as aforesaid, as a ferry-boat on the Williamette river, between her slip at the foot of F street in Portland and her landing on the east side of the river, a distance of about 1,000 feet across the stream and 800 feet down the same from said slip.

The ferry-boat is a double ended, heavy, side-wheel, iron boat of great power, about 130 feet long and 54 feet side over all,-- her guards projecting beyond her hull some 10 to 12 feet, and about 8 feet above her water-line, and is capable of making 12 miles an hour, and of stopping when under way, at full speed, in about 70 feet.

At the same time the defendants Brown & McCabe were the owners of the steam-launch Mikado, then engaged in carrying passengers between Portland and Albina,-- a distance of about a mile,-- starting from her dock in Portland, between D and E streets and about 300 feet above the ferry slip. The Mikado is a propeller about 45 feet long and 12 feet beam, and can make 10 to 12 miles an hour. She has a pilot-house a few feet of her stern, back of which is a cabin on deck and an open space at the stern, for the accommodation of passengers, of which she can carry 60.

Brown & McCabe are stevedores, and the Mikado was being used by them to carry their workmen down the river, to assist in loading and unloading vessels. Brown usually acted as pilot, for which he had a license from the United States inspectors. At this time the owners of the Mikado were under contract with Robert MacIntosh, a ship carpenter of Portland, to carry his workers to and from their employment between the termini of her route, at so much a month.

On the morning of October 26, 1886, the Mikado was at her dock with 35 or 40 passengers on board, mostly workmen going to their day's labor, including the deceased, who was then in the employ of MacIntosh as a 'liner' of ships and 'handy man.' Brown, the pilot, was not on hand. Arthur Jones, a youth between 17 and 18 years of age, who is now engaged as fireman on the Northern Pacific Railway, and was then employed on the boat in some subordinate capacity, often took the wheel under Brown's direction. The time having arrived for the passengers to go to their work, Jones undertook to make the trip as pilot. Accordingly the Mikado was started out, head up stream, and swung around till her bow pointed down stream, at about 250 feet from the west shore and her dock, when Jones observed the ferry-boat coming out of her slip on the way across and down the river to her east shore landing. He immediately gave one blast of his whistle, to signify that he intended to pass to the right. The pilot of the ferry-boat immediately responded with one whistle, and, instead of porting his helm and passing to the right, up stream, stopped his engines. At the time these signals were given, the ferry-boat had moved out from her slip about 20 feet, and the Mikado was about 300 feet above the point where the courses of the two boats, if continued, would cross each other at right angles.

The ferry-boat had not yet gotten steerage-way, and was moving directly across the river at about three miles an hour, while the Mikado was moving down stream at about five miles an hour, with her helm slightly to port. The ferry-boat, by force of the impetus already obtained, continued to move forward through the water after her engines were stopped, and the Mikado did not change her course or slacken her speed until the collision was imminent or unavoidable, when she porter her helm and stopped her engines. About the same time the ferry boat reversed her engines.

The port side of the bow of the Milado came in contact with the starboard side of the ferry-boat, about 20 feet aft, at an angle of about 45 deg., and ran under the latter, which pushed the pilot-house of the Mikado, with Jones in it, off into the river on the starboard side.

At and just before the collision took place the deceased, with two other passengers, was standing on the deck of the Milado in front of the pilot-house. One of them saved himself by jumping overboard and the other by springing up onto the guard of the ferry-boat. But the deceased was caught about the head, between the guard and pilot-house, and badly hurt, from the effects of which he subsequently died. Among other injuries, his jaw was broken and his skull fractured at the base, which resulted in an abscess on the brain, that was the immediate cause of his death.

There was neither wind nor current to interfere with the action or management of the boats, and either could have stopped, backed, or turned aside without difficulty in time to avoid the collision.

From these facts, but one conclusion can be drawn. The management of both boats was in fault. The first duty of a person in charge of a vessel, particularly where the lives of passengers are at risk, is to avoid a collision by all means.

The Mikado was moving at the rate of 5 miles an hour, and the ferry-boat at the rate of 3, when the whistles were blown. The former would cross the course of the latter in a distance of 300 feet. The ferry-boat was then 20 feet from shore, and her length was 130 more, which made her bow 150 feet out in the stream. The ferry-boat was making 4 2/3 feet a second, and the Mikado 7 1/3 feet in the time. At this rate the Mikado would pass over the 300 feet in a little less than 41 seconds, while the ferry-boat would move forward 150 feet in a little more than 36 seconds, and thus bring them both to the point of intersection within less than 5 seconds of each other.

From this it is evidence that it ought not to have escaped the attention of a competent and attentive pilot that if the two boats continued to move as they did at and after the whistles were blown, the Mikado would most likely collide with the ferry-boat at some point along her length of 130 feet. The engineer of the ferry-boat testified that he got the bell to reverse the engines in about a half minute after they were stopped. In that time the ferry-boat would move over about 140 feet, which would put her bow 290 feet from the shore, and at right angles with the course of the Mikado, when her engines were reversed. It is therefore quite evident, notwithstanding the testimony to the contrary, that the engines of the ferry-boat were not reversed until or just before the moment of collision.

These conclusions as to distances, times, and rates of speed are, of course, only approximately true. They are drawn from widely discrepant and contradictory statements of witnesses, most of which are at best but indefinite impressions and off-hand guesses.

But of this fact there is no doubt: These two boats came into collision under circumstances from which it plainly appears that either of them might easily have kept out of the other's way, and that the death of Philip L. Holland was caused thereby.

The pilot of the ferry-boat, after responding to the signal of the Mikado, and seeing that she was about to pass directly in front of him, ought to have reversed his engines at once, and thus have avoided the collision. Instead of this he allowed his boat to keep moving forward towards the point of collision, apparently relying on the fact that there was plenty of room for the Mikado to pass to the starboard of him, and if she did not keep out of the way, and a collision occurred, she would certainly get the worst of it, and be more careful in the future.

On the other hand, when Jones saw that the ferry-boat was moving through the water at right angles with his course, and her forward end within less than 100 feet of it, he ought to have ported his helm, and passed at least 100 feet in front of her, or reversed his engines and waited...