Kennebec Towage Co. v. State.

• Decision Date: 31 March 1947
• Citation: 52 A.2d 166
• Parties: KENNEBEC TOWAGE CO. v. STATE.
• Court: Maine Supreme Court

52 A.2d 166

KENNEBEC TOWAGE CO.

v.STATE.

Supreme Judicial Court of Maine.

March 31, 1947.

Action by Kennebec Towage Company against State of Maine to recover damages to plaintiff's tug boat Seguin through collision with an alleged hidden underwater obstruction in the draw channel of a bridge. A verdict was entered for plaintiff for $5,200. On state's exceptions to a portion of the charge and on general motion by the state for new trial.

Exceptions overruled, and motion overruled.

McLean, Southard & Hunt, by Ernest L. McLean and Frank E. Southard, Jr., all of Augusta, for plaintiff.

Ralph W. Farris, Atty. Gen., and Abraham Breitbard, Deputy Atty. Gen., for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, and FELLOWS, JJ.

FELLOWS, Justice.

This is an action to recover damages to the plaintiff's tug boat ‘Seguin,’ through collision with an alleged hidden underwater obstruction, in the draw channel of the Richmond-Dresden Bridge. The jury in the Superior Court for Kennebec County returned a verdict for the plaintiff for $5,200. The case now comes before the Law Court on the State's exceptions to a portion of the charge, and on general motion by the State for a new trial. The action was brought by virtue of a legislative resolve, whereby the State waived its immunity to suit, and authorized an action at law with the ‘liabilities of the parties * * * the same as the liabilities between individuals.’ Resolves of 1945, Chapter 12.

It fairly appears that on the morning of June 18, 1940, the tug ‘Seguin’ left Bath for Augusta, having in tow the barge ‘Bast.’ The tug was on the starboard quarter of the barge, and fastened to the barge by tow line, backing line, and breast lines. The breadth of the ‘Seguin’ was about 20 feet and its length 80 feet. The registered breadth of the ‘Bast’ was 35.6 feet and its length 170 feet. The barge was loaded with about 650 tons of soft coal.

The vessels, thus tied together, proceeded northerly up the Kennebec river to the channel on the easterly side of Swan Island. The Richmond-Dresden Bridge, built by the State and crossing the Kennebec, is situated near to and northerly of Swan Island. At this point in the River, where the waters of the channel on the westerly side of Swan Island join the waters on the easterly side, the current is often unsteady, with a possible tendency towards the easterly side of the river, and described as a ‘tricky’ or ‘witch current.’ At the time, it was flood tide, the wind was ‘fresh southwest,’ and the current was running up the river at a rate of about one and one half miles per hour. The vessels were going slowly, and were being steered in a manner to ‘line up the draw.’ The captain of the tug was at the wheel, and because the bow of the barge obstructed his view of the channel, the mate was stationed at the bow to signal the course.

There was a passageway, through the draw channel of the bridge, that was apparently 70 feet wide. The total width of barge and tug was about 56 feet. The draw pier on the west was protected by a plank wall or ‘apron’ filled with stone. The bridge pier on the east side of the draw channel had several ‘dolphins,’ or near-by clusters of piling driven into the river bottom, to indicate the course, and to protect the passing ship, as well as to protect the bridge. The total length of barge and tug as lashed together was approximately 180 feet, and the length of the westerly draw pier, that held the movable part of the bridge, was about 50 feet. The captain could seemingly allow, while in the drawbridge channel, for a possible side movement due to winds or current of fourteen or fifteen feet, in going forward the necessary 230 feet to clear the draw. The apparent safe width of the draw channel, however, of 70 feet, through which the vessels passed, was in fact about four feet less.

It appears that in the repair or reconstruction of the pier east of the draw channel, in 1938, the abutement or underwater portion of the pier was increased in size about three feet by putting concreate around it, and around this concrete some steel sheeting projected an additional five inches. The top of this repair work was at low water level. Also, six or eight inches below the top of the steel sheeting was an eight by eight oak timber, or ‘waling,’ fastened horizontally on the sides of the abutment. The sheeting and waling were used during reconstruction but were not entirely removed. This underwater projection, with the sheeting and waling, which extended about four feet into the draw channel, could not be seen when the water was above the low tide level. At the time of this accident the water was at about half tide.

The tug and barge proceeded slowly, and, as claimed by the plaintiff, only fast enough to maintain their course. They were passing so near to the westerly or draw pier, that the barge struck the corner of the plank apron of the westerly pier, placed to protect the pier. The impact threw the tug and barge across the narrow channel and against the downstream dolphin near to and southerly of the easterly pier. The tug then speeded up in order to straighten out, and immediately struck the unseen underwater projection in the easterly part of the draw channel, which crushed in her planking and caused the tug to sink soon after passing through the bridge. Witnesses for the plaintiff testified that this downstream dolphin, at the time of the accident, was improperly placed and did not indicate or protect the underwater obstruction, but was in line with the top portion of the pier. The State denied this, and claimed that the dolphin was properly placed, and that the cause of injury was the negligence of the tug boat captain.

Exceptions.

The presiding Justice, in his charge, said to the jury:

‘If the State was responsible for this, how much did it damage this plaintiff? It is not for me to say. It is for you. I say this to make myself clear to you. The evidence as I remember it, is that damage was $7,200. If it is different from that-if there is other evidence to show it was more or less-it is whatever the evidence shows. But my memory is-and don't depend upon my memory-my memory is one gentleman said-the owner of the tug or someone else-that the amount of the damage was $7,200. Frankly-and if I am wrong, I know one of the gentlemen will correct me-frankly, I believe if you come to damage, you should make the damage $7,200; but it is your province, I myself, remember no contradictory evidence.’

At the conclusion of the charge, and before the jury went out, the Attorney General stated:

‘The defendant takes exception to the statement of the Presiding Justice to the jury when he says if they find damages for the plaintiff it would be $7,200.’

The Court then immediately said:

‘Did I say that? I want to qualify it. Disregard what I said. It is not for me to say what damages are. I thought I was shortening some of your work, but I have no right when objected to. It is for you to find damages from evidence presented here-if you get to damages. You are to find it from all the evidence and from inferences and exhibits; and I tell you distinctly as far as the Court is concerned, the damages are not $7,200 nor 72 cents-it is not the Court's business. Perhaps I should not have invaded your province. I repeat and will exaggerate so there will be no misunderstanding. It is for you to say what the damages are from all this evidence.’

No exception was taken to the corrected instruction.

Evidence of value of the tug before and after the accident came in part from a vice-president and treasurer of the plaintiff company, who placed the total damage at $7200. The members of the jury were of course not obliged to accept this amount, and the Court plainly so stated. They were at liberty to consider the evidence of all facts and circumstances in the light of their knowledge and experience. Damages cannot always be reduced to mathematical computation. There are no rules that furnish an absolute guide for the discretion of a jury. Savoy v. McLeod, 111 Me. 234, 238, 88 A. 721, 48 L.R.A.,N.S., 971. If they did not believe a witness they could disregard his testimony. It was for the jury to determine what damage, if any, was the natural, reasonable and direct result of any unlawful act. As stated in the corrected instruction, if any liability, the jury should ‘say what the damages are from all this evidence.’ Collins v. Kelley, 133 Me. 410, 179 A. 65; Moore v. Daggett, 129 Me. 488, 150 A. 538; Topsham v. Lisbon, 65 Me. 449.

The presiding Justice had a right, during the trial, and before the case was committed to the jury, as well as a duty, to correct or explain any statement he may have made. McKown v. Powers, 86 Me. 291, 296, 29 A. 1079; Skene v. Graham, 116 Me. 202, 100 A. 938; Jameson v. Weld, 93 Me. 345, 45 A. 299; Coombs v. Mason, 97 Me. 270, 54 A. 728. It is ‘incumbent on a judge to see that no misconception arises in their minds because of any statement of his.’ State v. Shannon, 135 Me. 325, 328, 196 A. 636, 637. There was perhaps no chance of misunderstanding by the jury here. It was told to fix the amount, ‘It is not for me to say. It is for you.’ If the inadvertent statement of the presiding Justice, to the effect that the evidence indicated $7200 damage, could be understood as an...