Longstean v. Owen McCaffrey's Sons

• Decision Date: 22 December 1920
• Citation: 111 A. 788,95 Conn. 486
• Parties: LONGSTEAN v. OWEN McCAFFREY'S SONS.
• Court: Connecticut Supreme Court

111 A. 788

95 Conn. 486

LONGSTEAN v. OWEN McCAFFREY'S SONS.

Supreme Court of Errors of Connecticut.

December 22, 1920

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Action by Marie Longstean against Owen McCaffrey's sons to recover damages to plaintiff's house for alleged negligence of defendant, tried to the jury. Verdict and judgment for plaintiff, and defendant appeals. Error judgment set aside, and new trial ordered.

The plaintiff claimed to have proved the following facts:

On October 14, 1917, defendant was engaged in towing seven empty coal barges through Long Island Sound and going westward. The captain of the tug changed the course of the tow and at about the time he did so the hawser connecting the tug with the barges parted and they went adrift.

The tow line was made of wire and had been purchased new about a year before. The barges drifted to shore and were strewn along the beach from a point a little to the westward of plaintiff's cottage at the Silver Sands beach out to Carolina River Point. The barge furthest to east was the Wheeler-Howes barge.

On October 15th plaintiff warned the man in charge of the barges of the danger to her cottage from these barges unless they were removed. The barge was an old barge, and was liable at this season of the year to break up at any time with a storm of ordinary severity, and its pieces to be washed up and against the summer cottages along this beach, including that of plaintiff; and this the defendant ought, in the exercise of reasonable care, to have known.

On October 24th there was a severe wind which swung the barge around nearer plaintiff's cottage. On October 30th there was a wind of high velocity, and the barge was broken up and large pieces of it washed ashore, some hitting and damaging plaintiff's cottage. The place where these barges broke from the tow line was sufficiently shallow to have permitted the barges to have anchored therein had they been provided with cables and anchors.

The defendant offered evidence to prove: That the towing cable connecting the tug with the barges was of wire 1 1/4 inches in thickness, apparently in good condition, and had been in use in the same work by the same tug for about a year, and been used to convey 16 empty barges and 12 to 14 loaded barges at a time; that the line parted without apparent reason; that the tug was unable to reach the barges owing to the shallow water; that the master of the tug went directly to New Haven and telephoned defendant's manager in New York, and early on the next morning its manager, the superintendent of a towing company, and an expert wrecker came to New Haven, and on Tuesday all the barges except the Wheeler-Howes were pulled off; that defendant, beginning work on October 16th, endeavored to save this barge, and continued at work until October 24th, when a storm and the tide tore out some of their work, loosened her sides, and rendered it impracticable to make further attempts to save the barge; that defendant thereafter proceeded to strip the barge of things of value, and after October 28th did not thereafter make any further effort to secure or save the barge; that the storm of October 30th was one of unusual violence and was accompanied by an unusual tide; that both the storm of October 24th and 30th were of great and unusual severity and accompanied with unusual tides and such as could not have been reasonably anticipated; that the defendant was not negligent in allowing the barge to break away; that after the barges were stranded the Wheeler-Howes was in fact securely held by the rocks and beach so that there was no apparent occasion for further anchoring or securing it; that defendant proceeded with reasonable care and diligence to save and float the barge until its efforts were rendered fruitless by the storm of October 24th; that thereafter the barge could not have been removed nor could the parts or pieces been secured by the exercise of reasonable diligence; that damage to plaintiff's cottage, if to any extent caused by pieces of Wheeler-Howes, was only so caused in combination with the storms of October 24th and October 30th.

Leonard M. Daggett and David L. Daggett, both of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellee.

WHEELER, C.J.

The acts of alleged negligence of the defendant are set up in the complaint in a single involved sentence of 29 lines which reads as follows:

" (2) On or about the _____ day of October, 1917, the defendant negligently allowed a number of empty coal barges to break from the towing tug and go adrift and land upon the beach about 2,000 feet distant from where said cottage of the plaintiff was and is situated, and at such a distance that no harm would have occurred and no danger would have been imminent to the plaintiff's said premises and cottage but for the further negligent acts of the defendant, in that the defendant had ample time and warning from the harbor master of the city of New Haven to remove said barges, and did in fact remove all except one, and was offered abundant assistance to remove the other long before the damage hereinafter described was done by the remaining barge to the premises and cottage of the plaintiff, as hereinafter described; but the defendant negligently allowed one of said barges to remain on the shore and on the beach, and allowed the same to remain there for a period of about a week and for an unreasonable length of time, and for a length of time which was unreasonable and dangerous to adjoining property, for the defendant knew, or by the exercise of reasonable care might have known, that another storm was likely to break said barge up, thereby doing damage to the premises and cottage of the plaintiff and to other property, and the defendant was warned that said barge was in such position and situation that it was a danger to the plaintiff's said premises and to other cottages on the shore at that place, and that a storm was likely to arise at any time at that season of the year and break up said barge and throw the parts of it upon the premises of the plaintiff and others and thereby do considerable damage."

The plaintiff does not attempt to state in his brief the ground or grounds of negligence which he claims to have thus set up. But in his oral argument, and evidently in the trial court, he claimed that the complaint set up one cause of action for negligently allowing this barge to break away and go ashore, and another cause of action in permitting her to remain on the beach from October 14th to October 30th, when defendant ought to have known that a storm was likely to arise and break up the barge and cause the pieces of the barge to damage plaintiff's cottage, and further when defendant had been warned of this precise danger.

As we read paragraph 2, it sets up one ground of negligence only-the acts and omissions subsequent to the beaching of the barge. It does not set up a case of negligence by reason of the barges breaking loose through defendant's use of a defective hawser in towing these barges. It distinctly alleges that the negligence in permitting the barges to break and drift ashore would not have done harm to plaintiff's cottage but for the further negligent acts of the defendant subsequent to this time. By her express allegation the plaintiff excludes the negligent breaking away of the barge as a ground of negligence.

The trial court, misled by the obscure manner in which paragraph 2 of the complaint was drawn, which on casual inspection would be apt to lead to this construction, erroneously instructed the jury that this was one of the grounds of negligence alleged. And in this connection the court submitted to the jury the question:

" Did the defendant have the boats equipped with anchors, chains, or cables by which the crews could have prevented the barges from drifting ashore?"

No such ground of negligence is found in the complaint; yet the court concluded its instruction upon this point:

" I shall leave it to you, gentlemen of the jury, to decide as a matter of fact whether, if the defendant failed to equip the barges with anchors and chains or cables, it was negligent or not."

This was error.

Defendant also complains of the instruction to the jury:

" That if you find that this defendant permitted his barge to lie unsecured on the beach, and that, so lying there, it was liable to be washed out into these navigable waters by ordinary high tides, by storms, floods, or otherwise, voluntarily abandoning the boat there, on or about the 25th of October, then, if you so find, the defendant violated this statute, and was guilty of negligence in so doing; and, if that negligence was the proximate cause of this plaintiff's injury, then this defendant was guilty of actionable negligence."

The statute upon which the court based its charge, F. Stat. Ann. (2d Ed.) vol. 9, p. 58 (U. S. Comp. vol. 10, § 9918), provides in its first part that it shall not be lawful " to throw, discharge or deposit" from or out of any ship, barge, or floating craft of any kind any refuse matter of any kind other than that flowing in street or sewer in liquid state into any navigable waters of the United States.

Depositing refuse in any navigable waters of the United States from or out of any floating craft constitutes the offense of the statute, and its violation would furnish, if it occasioned injury and was the proximate cause of the damage, a cause of action for negligence for the damage done. Myrtle Point Transportation Co. v. Port of Coquille River, 86 Or. 311, 168 P. 625.

A barge beached upon the shore of navigable water cannot be held to be refuse within the meaning of this act, whether the barge came there through fault of the owner or...