Houchen v. Oregon-Washington R. & Nav. Co.

• Decision Date: 27 September 1918
• Docket Number: 14596.
• Citation: 175 P. 316,103 Wash. 598
• Court: Washington Supreme Court
• Parties: HOUCHEN v. OREGON-WASHINGTON R. & NAV. CO.

175 P. 316

103 Wash. 598

HOUCHEN v. OREGON-WASHINGTON R. & NAV. CO.

No. 14596.

Supreme Court of Washington

September 27, 1918

Department 2. Appeal from Superior Court, Wahkiakum County; H. W. B Hewen, Judge.

Action by W. A. Houchen against the Oregon-Washington Railroad &amp Navigation Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Main C.J., and Chadwick, J., dissenting.

A. C. Spencer and John F. Reilly, both of Portland, Or., for appellant.

Wm. Stuart, of Cathlamet, and J. Bruce Polwarth, of Portland, Or., for respondent.

HOLCOMB J.

Respondent instituted a common-law action against appellant to recover damages for $2,500 for injuries caused at 2:50 a. m. on September 1, 1916, by appellant's side-wheel steamer T. J. Potter in colliding with respondent's pile driver, which was anchored in the Cathlamet channel of the Columbia river, just north of Puget Island, which divides the river into two channels. Some 10 days prior to the accident the upper Burke fish trap, consisting of a row of piling approximately 500 feet long and extending out from the river bank, had been put in under federal permit on the island side of the channel. Later, in the afternoon of August 31, 1916, respondent towed his pile driver on a scow and anchored it somewhere below or down stream from this fish trap, the exact location being in dispute. Respondent alleged that the pile driver was lawfully anchored in the stream outside the ordinary course and channel of vessels, with a light displayed upon it; that the Potter negligently departed from its usual course and swung around the end of the upper Burke fish trap and headed for shore, continuing on that course until it ran into the pile driver, cutting the scow in two and sinking it and the pile driver with the appliances and equipment. Appellant in its answer denied that the pile driver displayed a light, and that it was lawfully anchored in a proper part of the stream and outside the channel, but alleged that the pile driver was unlawfully anchored in a part of the river suitable for navigation and in the usual course or channel of river steamers and of the steamer Potter; that the pile driver was within the shadow of the mountains on the south shore, and not visible until immediately before the collision, when the accident was unavoidable; that as a result of the collision the steamer Potter was considerably damaged, and that appellant was compelled to expend $399 for repairs, which is claimed as damages and as a counterclaim. Respondent's evidence of the location of the pile driver varied from 150 to 500 feet below the outer end of the upper Burke trap, and from 150 to 300 feet inside the outer end of it, according to the estimates of different witnesses. Respondent offered evidence as to the usual course taken by the Potter after the upper fish trap was constructed. One of respondent's witnesses testified that, before the upper fish trap was put in, the Potter usually ran pretty close to the shore and ran about in line where the pile driver was located. Respondent offered evidence of a light burning on the pile driver. The last time any witness claimed to have seen a light was at 2 a. m., 50 minutes before the accident, at which time he claims he saw some unknown person go aboard the pile driver from a boat. No one was aboard the pile driver at the time of the collision. The pilot and lookout of the Potter testified that there was no light on the pile driver.

At the trial before a jury the court, over appellant's objection, allowed evidence of the cost of raising the driver, the cost of repairing it, and of profits which respondent claimed to have lost through the sinking of the pile driver, and instructed the jury that it might allow damages for all of such items. At the close of the testimony appellant made a motion as follows:

'The defendant now moves the court for a judgment in favor of the defendant and against the plaintiff, and that the jury be instructed to return their verdict in favor of the defendant on the issue of damages claimed by plaintiff, and that this cause be submitted to the jury upon the issue only of defendant's counterclaim against plaintiff for damages to its steamer Potter. This motion is based upon the following grounds: (1) The evidence offered in this cause does not make out a sufficient case to entitle the plaintiff to have the same submitted to the jury on the issue of plaintiff's claim for damages against the defendant. (2) There is no evidence of any negligence on the part of defendant. (3) The evidence affirmatively shows that the plaintiff was guilty of negligence which contributed to the accident. (4) The evidence affirmatively shows that the accident happened in the navigable channel of the Columbia river, and that plaintiff's pile driver was unlawfully anchored in said channel and constituted an obstruction forbidden by the law of the United States. (5) That there has been no justification shown by plaintiff for the presence of the pile driver in the navigable channel of the Columbia river.'

The appellant duly excepted to the overruling of this motion. The jury returned a verdict of $2,000 in favor of respondent.

Appellant assigns that the court erred (1) in permitting plaintiff to testify, over defendant's objection, as to cost of raising the pile driver and scow; (2) as to cost of repairs to the pile driver and scow; (3) as to profits which he alleges he lost by reason of the sinking of his pile driver; (4) in permitting plaintiff's witness Fred Houchen to testify over defendant's objection as to the value of the use of a pile driver; (5) in giving instructions Nos. 9 and 11 to the jury; (6) in instructing the jury that, if they found for plaintiff, he would be entitled to the reasonable cost and expense of raising and repairing the pile driver, engine, tools, and appliances; and (7) that he would be entitled to recover the reasonable value of the services of the pile driver and equipment during the time it was necessarily disabled, if he had opportunity to profitably employ same during said time; (8) in instructing the jury that, if they found for the plaintiff, he would be entitled to recover damages for items mentioned in (5), (6), and (7), together with the depreciation, if any, in the market value of the pile driver and equipment from what it was prior to the collision; (9-16) in refusing defendant's requested instructions Nos. 4, 5, 7, 9, 10, 11, 12, and 13; (17) in instructing the jury that the right of navigations is paramount to other uses of navigable waters only so far as is necessary to navigate; (18) in refusing to instruct the jury that the operatives of steamboats have the right to operate them over any part of the Columbia river where the water is of sufficient depth to carry them, provided they act without wantonness and without malice, and do not willfully injure or destroy property anchored in the stream after they discover its presence in the stream; (19) in refusing defendant's requested instruction No. 8, which was to the effect that, if there were no lights upon the pile driver, plaintiff was guilty of negligence; (20) in giving to the jury instruction No. 13, and particularly that part thereof to the effect that there is a presumption of law against a moving vessel; (21) in refusing defendant's motion for a directed verdict in its favor on the issue of plaintiff's claim for damages against defendant.

A vessel injured and sunk in a collision, and which can be raised and repaired, cannot be abandoned by the owner and treated as a complete loss. He must minimize the damages as far as possible. Respondent did not treat the pile driver as a total loss, but demanded general damages. The complaint describes the property injured, its used and purposes at the time of the injury. The complaint might have been more specific in alleging the different elements of damages, but, it not having been moved against because of such generality, the damages must be considered such as were the necessary and direct result of the sinking of the pile driver. The pile driver was something that could not be procured in the market at any time; hence replacing it in condition as far as possible to do so, coupled with the depreciation in value and the loss of its use, if any, are the elements by which damage can be measured. Respondent, if not at fault, is entitled to be put in the same condition as he was before the injury, or compensated where that cannot be done. This would include the cost of raising and repairing the pile driver, replacement of its equipment, its depreciation in value, and recovery for loss of its use; the total recovery under the pleadings not to exceed the value of the pile driver and its appliances at the time and place of the injury. West v. Martin, 51 Wash. 85, 97 P. 1102, 21 L. R. A. (N. S.) 324.

Instruction No. 9, given by the court, is as follows:

'You are instructed that the right of a vessel to navigate the waters of the Columbia river, so far as is reasonably necessary to navigate the same, is paramount to any other use of the navigable waters of said river, with this condition and limitation, however, that such navigation shall not be carried on wantonly or negligently, and shall be carried on with reasonable regard to the rights of others to use the waters of said river.'

While defendant's requested instruction No. 4 is as follows:

'In arriving at the question as to whether the defendant was negligent in the manner alleged in the complaint, I instruct you that the right to construct fish traps in the waters of the Columbia river is at all times subordinate to the superior right of steamboats to navigate the same, and that the operatives of such steamboats have the right to

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