Monongahela River Consol. Coal & Coke Co. v. Schinnerer

• Decision Date: 13 March 1912
• Docket Number: 2,173,2,174.
• Parties: MONONGAHELA RIVER CONSOL. COAL & COKE CO. et al. v. SCHINNERER. SAME v. HURST.
• Court: U.S. Court of Appeals — Sixth Circuit

196 F. 375

MONONGAHELA RIVER CONSOL. COAL & COKE CO. et al. v. SCHINNERER.

SAME v. HURST.

Nos. 2,173, 2,174.

United States Court of Appeals, Sixth Circuit.

March 13, 1912

[Copyrighted Material Omitted]

R. P Cary and C. H. Stephens (Stephens, Lincoln & Stephens and Charles H. Stephens, Jr., on the brief), for appellants.

Wm. R Harrison, for appellees.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

The decedents of the respective appellees were drowned in the Mississippi river, near Memphis, as the result of a collision between the motor boat in which they were riding and a tow of the steamer Enterprise, owned by the defendant Coal & Coke Company, and operated by the defendant Towboat Company. Under separate proceedings in personam, in admiralty, heard together by the district judge, without a jury, decrees, each in the sum of $10,000, were entered in favor of the respective libelants, against both defendants, on account of the respective deaths. From these decrees, these appeals are taken. No point is made in the argument against the liability of both defendants in case the negligence of the Towboat Company caused the deaths of the respective decedents, and in the absence of contributory negligence on their part.

A primary question is presented as to the sufficiency of the libels. As originally filed, they alleged that the accident took place 'on the Tennessee side of the river. ' Respondents' answer denied this allegation, and averred that the boat 'was on the Arkansas side of the river, and out of and beyond the jurisdiction of this court,' which fact the answer urged in bar. The libels were then amended so as to allege that the accident took place 'on the waters of the Mississippi river, between a mile and two miles above the wharf of the city of Memphis, and between the shores of Arkansas and Tennessee. ' exception previously filed, that the allegation as to the place where the accident occurred was too uncertain to enable intelligent answer by defendants, was overruled; the court expressing the opinion that it would 'be able to apply the law of the state in which the proof shows the accident to have occurred, ' and that, when that should appear, 'counsel can address himself to the law of the state in which the proof may show it did occur. ' The ground of this exception is that, inasmuch as there was no right of action in admiralty for negligent injuries causing death, except by virtue of the statute of the state where the wrongful act occurred (The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140, 30 L.Ed. 358), the court obtained no jurisdiction over the action for lack of allegation of the existence of a statute creating the same; and that the importance of the objection was emphasized by the difference between the statutes of Tennessee and Arkansas as to limitation of actions, beneficiaries, and measure of damages. But as the courts of the United States take judicial cognizance of the public statutes of the several states of the Union (Owings v. Hull, 9 Pet. 607, 9 L.Ed. 246; Elwood v. Flannigan, 104 U.S. 562, 568, 26 L.Ed. 842; Gormley v. Bunyan, 138 U.S. 623, 635, 11 Sup.Ct. 453, 34 L.Ed. 1086), and are presumed to know that actions for negligent injuries causing death are based upon state statutes, there was no lack of jurisdiction to maintain the action. And as no question of limitation of action is raised, and as the court ultimately held that the cases were governed by the laws of Arkansas, as was contended by respondents in their pleas to the original libels, no prejudice could have resulted from the amendment. The assignments based upon the overruling of these exceptions are thus not well taken.

Sections 6289 and 6290 of Kirby's Digest of the Statutes of Arkansas make provisions for the recoveries claimed. Such right of recovery can be enforced in admiralty by proceedings in personam. The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. 264; The City of Norwalk (D.C.) 55 F. 98; Robinson v. Detroit & Cleveland Steam Nav. Co. (C.C.A. 6) 73 F. 883, 20 C.C.A. 86.

Turning to the circumstances of the accident:

The decedents, together with one Auferoth and one Dietrich, were returning to Memphis from Owens Bar (a few miles above Memphis), where they had gone for duck shooting. The motor boat belonged to Dietrich, and was in his charge and general operation. When near Memphis, in the early evening, but after dark, the batteau in tow of the motor boat was seen to be filling. In attempting to empty it, the oars, which were in the batteau, were broken, and, except a stub of one oar, were lost; and the electric wires connecting with the motor were broken loose, and the motor boat thus disabled. All effort to repair the injury to the motor boat failed, and it drifted helplessly downstream, practically broadside, upon a 10-mile current, until it was struck by a fuel tow lashed to the side of the ascending steamer. All the occupants of the motor boat were thrown into the water, and all were drowned except Auferoth, who was pulled aboard the fuel tow. kind. To obtain light for the attempted repair of the power, envelopes and other papers were burned; and after the steamer was seen, and for some little time before the collision, burning papers were waved and shouts given by the occupants of the motor boat in a frantic effort to attract the steamer's attention and avert the catastrophe. Previous to the collision, the motor boat was seen by the steamer's navigator, and the searchlight thrown on the motor boat.

Libelants contend that the motor boat and its helpless condition actually was, or should have been, discovered by the steamer in time to have avoided the collision, and that those in charge of the steamer were grossly negligent in running down the motor boat. Respondents contend that the steamer was not negligent in failing to make earlier discovery of the motor boat; that, on discovering the latter's condition, every effort was made to escape collision, by immediately stopping the engine and immediately thereafter backing the boat; and that the accident was due solely to the negligence of the occupants of the motor boat in respects later to be mentioned.

There is no controversy over the facts alleged as contributory negligence. On this subject, the only controversy is over the effect of these facts. There is, however, a sharp conflict as to the facts alleged to constitute respondents' negligence; and although we here consider the testimony de novo, we do this in recognition of the rule stated by Judge (now Mr. Justice) Lurton, in City of Cleveland v. Chisholm, 90 F. 431, 434, 33 C.C.A. 157, 160, that:

'The judgment of the District Court will not be reversed when the result depends alone upon questions of fact depending upon conflicting evidence, unless there is a decided preponderance against the judgment, where the trial judge saw and heard the witnesses, and had an opportunity of weighing their intelligence and candor.'

The rule thus stated has peculiar force as applied to the consideration of the testimony in this case. So far as concerns the question of respondents' negligence, we are not impressed with their contention (upon the authority of The City of New York (C.C.A. 2) 54 F. 181, 4 C.C.A. 268) that the rule we have referred to has no application, from the fact that no opinion was filed by the district judge, for it is obvious that the latter could not have rendered decrees for libelants without finding respondents guilty of negligence causing the death of decedents.

We have no difficulty in reaching the conclusion that the collision would not have taken place but for the negligent operation of the steamer. Auferoth testified that the steamer's searchlight was thrown on the motor boat when the latter was 400 or 500 yards from the steamer. Grooms, whose position on a boat near the scene gave him a view of the accident, states the distance at 400 yards. The testimony of Casey, the steamer's snag watchman (who at one time gave the distance at 250 to 300 yards) is not of great help to one not seeing the witness; but the trial judge had means (including comparisons and indications made by the witness) of judging the weight to be given his testimony. Captain Nichols, who was acting as the steamer's pilot, says the motor boat was about 25 or 30 yards away when the searchlight was turned upon it. either 75 or 80 feet or 75 or 80 yards; it is not clear which. The only remaining witness engaged in the steamer's navigation whose testimony is of substantial help is Washington, the fireman on the steamer, who was attracted from his fire box by the cries of the men on the motor boat. He says that when he came to the head of the steamer (which was after he heard the cries, but how long after does not definitely appear) the searchlight was then on the motor boat, and the latter about 50 or 60 yards away. It is clear the steamer could not have been stopped, or its course so changed as to avoid the collision, within 25 or 30 yards. We are satisfied, however, from the evidence, that collision could reasonably have been avoided had the motor boat been seen by the steamer when not more than 250 or 300 feet away. Should it have been so seen by the exercise of reasonable care? Butler's attention was attracted by the men's cries when the motor boat was 300 yards from him, and he saw a dim light on the boat before he saw the searchlight turned on. After the searchlight was put on, he saw the men on the motor boat, but could not tell how many there were. As we understand it, the motor boat was, at the time, astern of Butler's boat. Grooms, who thinks he was 400 or 500 yards from the motor boat, heard the cries both before and after the searchlight was turned on. We are satisfied that...