Ladd v. Foster

• Citation: 31 F. 827
• Parties: LADD v. FOSTER and others.
• Decision Date: 20 August 1887
• Court: U.S. District Court — District of Oregon

31 F. 827

LADD v. FOSTER and others.

United States District Court, D. Oregon.

August 20, 1887

(Syllabus by the Court.)

C. E S. Wood and George H. Williams, for libelant.

P. L Willis, for defendant Foster.

H. T Bingham, for defendant Albina Ferry Co.

DEADY J.

This suit is brought by William M. Ladd, administrator of the estate of Samuel Taylor, deceased, against the defendants, W. H. Foster, A. J. Knott, and the Albina Ferry Company, to recover damages for the death of said Taylor in the sum of $5,000, alleged to have been caused by the negligence and mismanagement of the master and crew of the steam ferry-boat New York, whereof said Foster and Knott are alleged to be the owners; and the negligence and lack of skill of the master and crew of the steam ferry-boat Albina, whereof the said Albina Ferry Company is the owner; and also the negligence of said company.

It is alleged in the libel that Taylor on this occasion took passage on the New York, at Albina, for Portland; that she started on her voyage up and across the Wallamet river about the same time the Albina started directly across it, the latter being held on her course by means of a wire cable stretched loosely from one bank of the river to the other; that, soon after the New York started, she was hailed by a person desiring passage, and undertook to return to her landing for him, when, by the mismanagement of her master, she drifted broadside against the wire of the Albina, and was washed under it by the current, careening up stream and onto her side in so doing, and that Taylor was severely injured by said cable, of which injuries he died on the same day.

The defendants answer separately, each admitting the character in which the plaintiff sues, and the death of his intestate by the casualty which occurred to the New York on the occasion in question. But the defendant Knott denies that he is or ever was the owner of any interest in the New York, or that the death of Taylor was caused or occurred by or through any act or instrumentality of his. The defendants Foster and the Albina Ferry Company also allege that the deceased was partially intoxicated, and that he contributed to the injury which caused his death by jumping out of the window of the cabin of the boat just before she passed under the wire; that, owing to his habits and incapacity to earn money, Taylor's death was no loss to his estate; and that his life was insured for $3,000, which sum his estate has gained by his death.

In his answer Foster alleges that the drifting of the New York against the cable of the Albina was an inevitable accident, and that the upsetting of the boat was caused by the cable being held on or about the surface of the water on account of the unusual pressure of wind and current against the Albina.

From the pleadings and evidence, and an inspection of the boats and the Albina landings, I find the following facts:

At and before March 9, 1887, the Albina Ferry Company, a corporation formed under the laws of Oregon, was engaged in running the steam ferry-boat Albina across the Wallamet river, between Albina and North Portland, the same being held on her course by a wire cable loosely stretched across the river; and that at the same time the defendant Foster was engaged in running the steam ferry-boat New York on and across said river, between Portland and Albina, a distance of about a mile and a quarter. The Albina is a sidewheel boat, about 90 feet long, and the cable on which she runs passes over two sheaves or wheels under the guard at either end and on the upper side of the boat, between the hull and wheel. The New York is a propeller of fourteen tons burden, and about fifty-four feet long and twelve feet beam, with guards two feet above the water line at midships, and rising to not less than six inches, with a house two-thirds of the length of her deck, rising six feet above the water line, in which are passenger cabins fore and aft of the engine room, the floors of which are not less than a foot below the water line, and draws five feet of water, and has a speed of eight miles an hour.

The New York's landing at Albina is a floating pontoon 20 by 40 feet, made fast to the bank, and resting on the lower side against a row of piling extending 20 feet beyond it, into the river, immediately below which is the cable and landing of the Albina. About 80 feet above the pontoon is Schafer's dock, extending into the river about the same distance as the outer end of the pontoon. Between the dock and the pontoon the river is clear, and the water about 36 feet deep, shoaling gradually back to the bank, a distance of about 200 feet. The river at this point is about 1,200 feet wide, and on this occasion was much swollen, and running between 6 and 8 miles an hour, with a moderate breeze down stream. The boats started out nearly at the same time,--about 9 o'clock A.M.; the New York probably a little the first. The master of the latter was not familiar with the boat or landing, having only been on board two days, in the temporary absence of the regular master.

When the New York had proceeded about 100 feet on her way, and was probably 50 feet from and nearly in front of the lower corner of the dock, and about 75 feet above the cable, she was hailed by a person on the pontoon, who desired a passage, when the master undertook to back in for him. This was a usual thing to do under the circumstances, and had not, so far as appears, ever been attended with any danger or inconvenience. As the stern of the boat passed into the eddy or comparatively still water below the dock, its down-stream motion was checked, while the bow, being still in the current, and somewhat across it, was swung around until the boat was turned broadside to the stream, outside of the piling. The Albina was now about 300 feet from the pontoon, going west, and her cable to the east of her, owing to the unusual pressure of the current and wind against the boat, was held on or above the surface of the water.

When the master of the New York found his boat drifting broadside onto the cable, instead of backing quickly into the upper side of the pontoon, or putting his helm hard a starboard, and going ahead with all his power, and so getting his bow up stream again, and leaving the cable behind him, apparently he became confused, and did neither the one nor the other, but signaled to the engineer to go back, and then forward until the boat was caught on the cable, just below the guards, where she was held as on a pivot, while the current washed her hull down stream until she turned over on her side, in which position she was swept under and below the cable, where she righted up again, with her cabins full of water. As the boat turned over up stream, Taylor, who, with two other passengers, was in the forward cabin, jumped out of the window on the down-stream side, and there received the injuries of which he died. It is alleged in the libel that he was injured on his left thigh, arm, side, and hand, and internally, and this is admitted; but the evidence does not particularly disclose how it happened. It is probable, and seems to have been taken for granted, that as Taylor went out of the window he was caught between the boat and cable, and bruised and hurt as stated.

Dr. M. J. Patton, one of the persons who was in the cabin at the time of the occurrence, is a witness in the case, and testifies that as the boat went over, and Taylor got out of the window, he and the third person in the cabin were thrown down on the lower side thereof and covered with water, and when the boat righted he rose to the surface in water up to his chin, where he remained until it receded sufficiently to enable him to go through the doorway, when he got out on the forward deck, and saw Taylor floating in the water about forty feet up stream.

The master of the New York, although aware of the proximity of the cable and its elevation, does not seem to have been aware of the danger of letting his boat hang on it, subject to the great pressure of the current on the whole length of the hull and a width of not less than five feet below the fulcrum or point of contract. He remained in the pilot-house, and testified that as the Albina was receding the cable was sinking, and he had no idea the boat would go under, forgetting, apparently, that before the cable sank clear of the boat the pressure on the latter above the former would capsize her down stream.

From these facts there is, in my judgment, but one conclusion. The New York was unskillfully and improperly handled (1) while undertaking to back into the pontoon, in not keeping her head sufficiently up stream, so that when the stern entered the still water or eddy, the current would not have swept her bow round; (2) after the bow had swung down stream, in not promptly putting her helm hard a starboard and going ahead on her, so as to get away from the cable and the danger. And the master, in maneuvering as he did in proximity to this cable without knowing or taking into account the danger of being caught thereon and turned over or under it, according to its elevation, was either incompetent or grossly negligent.

The evidence is satisfactory that the defendant Knott has not and did not have any interest in the New York, and the libel will be dismissed as to him.

It is true, as contended by counsel for the defendant, that a carrier of passengers is not an insurer. But as was said by Mr. Justice FIELD in Shoemaker v. Kingsbury, 12 Wall. 376, a carrier of passengers for hire is subject by the law 'to a very strict responsibility;' and therefore he is bound to provide for their safe conveyance 'so far as that is practicable by the exercise of human care and foresight. ' See Dunlap v....