J. W Paxson Co. v. Board of Chosen Freeholders of Cumberland County

• Decision Date: 20 December 1912
• Docket Number: 1,671.
• Citation: 201 F. 656
• Parties: J. W. PAXSON CO. v. BOARD OF CHOSEN FREEHOLDERS OF CUMBERLAND COUNTY. [1]
• Court: U.S. Court of Appeals — Third Circuit

201 F. 656

J. W. PAXSON CO. v. BOARD OF CHOSEN FREEHOLDERS OF CUMBERLAND COUNTY. ^[1]

No. 1,671.

United States Court of Appeals, Third Circuit.

December 20, 1912

Martin V. Bergen, Jr., and Howard M. Long, both of Philadelphia Pa., for plaintiff in error.

Walter H. Bacon and Roscoe C. Ward, Co. Sol., both of Bridgeton N.J., for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

GRAY Circuit Judge.

This was an action in tort, originally instituted in the New Jersey Supreme Court and afterwards removed by the defendant to the Circuit Court of the United States for the District of New Jersey, for the recovery of $20,000 damages, for the negligent destruction by defendant of a portion of plaintiff's drawbridge over the Maurice river, in Cumberland county, N.J., August 30, 1909. As the case was tried, upon stipulation by the attorneys for the respective parties, before the court without a jury, under the provisions of section 649 of the Revised Statutes (U.S. Comp St. 1901, p. 525), the facts of the case and conclusions of law arrived at can best be understood by quoting the opinion of the court as a whole. It is as follows:

'Cross, District Judge. The above-entitled action was tried before the court without a jury, a jury having been waived by written stipulation pursuant to the statute. The action was brought by the plaintiff to recover damages for the destruction of a drawbridge belonging to it and spanning Maurice river, at Mauricetown, in the county of Cumberland and state of New Jersey, on the 30th of August, 1909, through the alleged negligence of the defendant's agents. On that date a barge known as the 'Mildred McNally' was being towed on a hawser by a tugboat known as the 'Lizzie D,' which tugboat was owned and in charge of the servants of the defendant. The barge was 187 feet long on the water line, and 23.9 feet beam, and was at the time loaded with about 700 tons of sand. The drawbridge in question was originally built by the Maurice River Bridge Company, a private corporation thereunto authorized by an act of Legislature of this state (P.L. 1864, p. 583). Pursuant to that act, said company built a bridge over the Maurice river at the point in question. Subsequently in 1871, by an act of Legislature passed in that year (P.L. 1871, p. 303), said bridge company was authorized and empowered to convey the bridge to the board of chosen freeholders of the county of Cumberland, the plaintiff herein, and pursuant thereto, such a conveyance was subsequently made, since which time the title to said drawbridge has been vested in and the bridge maintained and operated by said board of chosen freeholders, and was so maintained and operated on August 30, 1909. The draw of said bridge turned on a pivot, resting upon a pier constructed for that purpose. When the draw was turned, two open ways for the passage of boats were provided through the bridge, one on either side of the center pier, each 58 feet in width. They are known in the case as the eastern and western draws. The accident happened while the tug and her tow on their way down the river were attempting to go through the eastern draw. The tug at the time had the barge in tow on a hawser of from 35 to 40 fathoms in length. The tide was ebb and running at the rate of about 3 miles an hour, and the tug 'clear of the current' about 3 miles an hour. The river above the bridge was about 250 feet in width. The evidence on behalf of the plaintiff shows that the tug, before coming into the reach of water leading to the bridge, signaled the bridge tender to open the draw, which was promptly done; that the tug and its tow as they approached the bridge, and for several hundred feet above it, were too far to the westward to make the eastern draw; that in crossing over to make that draw, which, because of a crosscurrent, was the customary one for boats to make in coming down the river, the barge in tow sheered, by reason of the tide striking its port side nearly abreast, so that, while the tug was able to go through the draw, the barge was carried down by the tide and struck the eastern wing or fender of the bridge, passed through it and struck the eastern span of the bridge, which was thereby thrown off and into the water and destroyed. The testimony, showing that the barge and her tow were too far to the westward to make the eastern draw, was given by four experienced witnesses, three of whom at least, were disinterested; they all unite in saying that the tug and barge were, as they approached the bridge, too far to the westward and farther than was customary for boats coming down the river, and intending to pass through the eastern draw. It is true that their testimony is denied by that of the captain of the tug, but in view of the fact that the plaintiff's witnesses are disinterested, and that their testimony affords the only possible way of accounting for the collision, it must be, and is accepted as true. It is accordingly concluded that the tug and barge being too far to the westward, as they approached the bridge, were as their course was changed to make the eastward draw, brought nearly abreast of the tide, and the barge having no power of its own, was thereby carried down to and against the eastern wing and span of the bridge. The hawser was broken by the collision and the tug passed through the draw safely. The defendant, under the circumstances, as the owner and manager of the tug is clearly liable. It towed the barge into a position where it became dangerous and from which it was unable to, or did not, extricate it. The collision was the result of faulty towing for which, under the evidence, the defendant is liable.

'Pursuant to the provisions of the acts of the New Jersey Legislature above referred to, it became and was the duty of the plaintiff to erect and maintain suitable and sufficient wings to said bridge, and as an incident thereto, to exercise ordinary care to maintain them in reasonably good and proper condition for the purpose for which they were built.

'The defendant insists that the plaintiff did not discharge its duty in this behalf, and that accordingly it was guilty of negligence which contributed to produce the injury which it received. In support of this contention, it has introduced evidence to show that the piles and timbers constituting the wing and fender of the eastern span of the bridge, were at the time of the accident, rotten and wholly unfit for the purpose for which they were designed and constructed. A careful examination of the testimony upon this point, however, satisfactorily shows that only the sappy portion of the heads of the piles were decayed, which condition will, according to the evidence, exist after a year or two of service, where they are not located wholly under water. The heart of the piles, however, was sound, and the braces and sheathing of the fender had been renewed about three years before, so that the structure as a whole was, when the accident occurred, in reasonably good repair and condition. This is shown not only by direct evidence, but inferentially by the fact that only a day or two before the accident in question, the same fender had been run into by a vessel, but withstood the shock without apparent injury. That the blow which the fender received from the scow when the accident in question happened, was of great force and violence, must be inferred from the fact that a stick of hard yellow pine of the best quality, twelve inches square, which had been in use three years and was perfectly sound, was broken directly in two. The severity of the blow must therefore be accepted as a fact, notwithstanding evidence on the part of the defendant that it was of so slight a character that the paint on the bow of the barge was not even scratched. Such testimony under the circumstances is incredible and must be disregarded.

'Upon the question of damages, it appears that the eastern span of the bridge was, according to the evidence, totally destroyed and the fender nearly so. The iron with which the framework of the span was constructed was bent and twisted, and the entire structure thrown into the river, and undisputed evidence shows that it would have cost more to have raised, straightened and reconstructed the old span from the wrecked material, which was iron, or to have built one like it of the same but new material, than it did to build the new one, which was of steel. There is also evidence which shows that the new span of steel has neither the durability nor the strength of the one of iron, now forming the western span of the bridge, which it is stipulated in the case, was built at the same time and was in material, workmanship and generally like the one destroyed. Consequently, it inferentially but conclusively appears that the new span is not so good or durable as the old one was at the time of its destruction, and since the old one could not have been repaired or reconstructed without greater expense than was involved in building the new one, it seems but right and proper to allow as damages the cost of the new span and fender, less certain deductions from the cost of the fender, to which reference will later be made.

'In addition to the cost of such construction, the plaintiff seeks to recover the amount of certain fees for two meetings of the members of the board of chosen freeholders, and for meetings of its committee which had in charge the superintendence of the construction of the new span and fender; also for the cost of advertising for contractors' bids and other incidental expenses. The items just referred to cannot, however, be allowed because they are not claimed in the declaration and because, moreover, they are not the direct natural and proximate result of the...