Louisville & N.R. Co. v. Yarbrough

• Decision Date: 14 January 1909
• Citation: 57 Fla. 101,48 So. 634
• Court: Florida Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. YARBROUGH.

48 So. 634

57 Fla. 101

LOUISVILLE & N. R. CO. v. YARBROUGH.

Florida Supreme Court, Division B.

January 14, 1909

Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Action by W. G. Yarbrough against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

The floatage of logs in a navigable river must be carried on with due and reasonable regard to the rights of a bridge owner and others, and to the general usages and customs of navigation and commerce.

While a railroad is not required to keep the open space under its drawbridges over a navigable stream free from obstructions to navigation when such obstructions are present without fault on the part of the railroad, yet it is the duty of a railroad company to prevent the accumulation of wreckage or drift around the piers of its bridges which would interfere with navigation.

Where a raft has lodged against the fender of the pier of a railroad drawbridge on an important line of railroad about 9 o'clock at night, there being a navigable channel sufficiently wide to easily permit the passage of boats and rafts on either side of the pier, and the raft remained there until 3 o'clock the next evening, and when the agent of the owner of the raft in charge thereof has made no proper efforts to remove the raft, or to notify the owner of its situation, the river being in a rising condition, and the raft being a menace to the bridge, and a nuisance which the railroad company has the right to remove for its own protection and the protection of the lives and property of those who had occasion to use the railroad, and the railroad officials had endeavored without avail to pull the raft away from the pier, and then cut up the raft about 3 o'clock the next day after it lodged, and part of the logs were lost and a suit was brought by the owner of the logs to recover of the railroad company the value of the lost logs, on the trial of said suit it was erroneous to charge the jury 'the duty upon the railroad before it broke up the raft to notify the owner or his agents of their intention so to do, and to allow him a reasonable time and opportunity to take care of the raft after it was turned loose.' Such a charge was inappropriate to the facts. In removing the raft it was the duty of the railroad company to use ordinary care to do no unnecessary injury to the owner of the raft, but under the circumstances neither the owner nor his agent had a right to any other notice than they had of the exigencies of the situation.

No question is presented here of the applicability to the facts of section 3149, Gen. St. 1906.

COUNSEL

Liddon & Carter, for plaintiff in error.

Price &amp Lewis, for defendant in error.

OPINION

HOCKER J.

W. G Yarbrough sued the Louisville & Nashville Railroad Company in the circuit court of Jackson county. The following is the declaration and bill of particulars; the latter being made a part of the former:

'Now comes the plaintiff in the above-styled and entitled cause, and sues the defendant, Louisville & Nashville Railroad Company, which had been duly summoned herein, and for cause of action says:

'(1) For that whereas heretofore, to wit: on the 27th day of February, 1908, the plaintiff was the owner and in possession of a certain raft of pine timber, which, at said time, was rafted and lying in the waters of the Apalachicola river at and near bridge of the defendant company across said river, and, while said raft was so lying at or near such bridge in the river aforesaid, the said defendant, by and through its servants, agents, and employés, entered upon said raft, and over and against the protest of the plaintiff cut the binders of said raft and the rope to said raft attached and turned said timber loose in the waters of said river, whereby a large portion of said logs, to wit, 64 pine logs, of great value, to wit, of the value of five hundred ($500) dollars, were washed and carried away and were never found or recovered by plaintiff, but were wholly lost; that by reason of the unlawful acts of said defendant in so cutting and turning loose said raft of timber plaintiff was forced to expend large sums of money for labor and salvage for the recovery of a portion of the logs so cut adrift as aforesaid by the said defendant, to wit, the sum of fifty ($50.00) dollars.

'Wherefore plaintiff sues and alleges his damages by reason of the premises in the sum of seven hundred and fifty ($750.00) dollars.

'(2) Plaintiff further sues the defendants for that whereas heretofore, to wit, on the 27th day of February, 1908, plaintiff was the owner and in possession of a certain raft of pine timber which was then and there in the waters of the Apalachicola river; that, while floating said raft of timber down said river, the rear block of the said raft became fastened to a cartain plank inclosure inclosing and surrounding one of the piers of the bridge belonging to the defendant company; that plaintiff was using all reasonable means in his power to remove said logs and unfasten the same, but that, while plaintiff was so endeavoring to unfasten said logs so that he might proceed to market therewith, the said defendant, without reasonable cause or grounds therefor, came upon said logs by its agents, servants, or employés, and over the protest of plaintiff proceeded to cut the binders which held said logs together, and also the ropes attached to said raft, and turned said timber loose; that by reason of the actions of the defendant, as aforesaid, said raft became broken up and the logs thereof drifted away, and a large part thereof, to wit, 64 pine logs of the average of 400 feet each, and of great value, to wit, the value of $500, were never found nor recovered by plaintiff, but, on the contrary, were wholly lost; that by reason of the unlawful acts of the defendant in so cutting and turning loose said raft of timber, in addition to the loss of timber aforesaid, plaintiff was forced to expend large sums of money for labor and salvage in finding and recovering a portion of said logs which were formerly a part of said raft, to wit, the sum of $50.

'Wherefore plaintiff sues and alleges his damages, by reason of the premises, in the sum of $750.

'Bill of particulars hereto attached, marked 'Exhibit A,' and asked to be taken and considered a part of this declaration.

'And plaintiff claims damages in the sum of seven hundred fifty ($750.00) dollars.

'Will H. Price, Attorney for the Plaintiff.'

Bill of Particulars.

Louisville & Nashville Railroad Company

in Acct. with W. G. Yarbrough.

To 64 pine logs, 400 feet average each .....	$500 00
To money and labor expended in recovering a portion of the original logs .............	50 00
	-------
Total ..................................	$550 00

A plea of not guilty was filed, and on the trial the plaintiff recovered a judgment for $473.30 damages and $45.60 costs. The judgment is here for review on writ of error.

The facts we deem it necessary to refer to briefly stated are about as follows: Some time in February, 1908, the plaintiff hired a man named Sheppard Royals to drive a raft of logs belonging to the former down the Apalachicla (Chattahoochee) river to Apalachicola, past the point where the railroad bridge of the defendant spans the river. There were 90 logs in the raft, fastened together in sections. In the first section there were 20 pine logs; in the second 21; in the third 18; in the fourth 19; and the balance were put into what the witnesses call a spantail, in the center of the raft. These sections were fastened together by couplings and binders. There was also a rope running from the bow to the stern to aid in holding the raft together. The raft was started down the river about 2 o'clock in the afternoon. The river was high, and between 8 and 10 o'clock at night it reached the bridge of the defendant corporation. The river is a navigable stream, and there is a drawbridge to permit the passage of steamboats. On either side of the pier on which the draw rests there is a navigable channel sufficiently wide to easily permit the passage of boats and rafts. In going under the drawbridge the driver of the raft Sheppard Royals, so managed that the rear end of the raft...