Myrtle Point Transp. Co. v. Port of Coquille River

• Decision Date: 13 November 1917
• Citation: 86 Or. 311,168 P. 625
• Parties: MYRTLE POINT TRANSP. CO. v. PORT OF COQUILLE RIVER ET AL.
• Court: Oregon Supreme Court

168 P. 625

86 Or. 311

MYRTLE POINT TRANSP. CO. v. PORT OF COQUILLE RIVER ET AL.

Supreme Court of Oregon

November 13, 1917

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Suit by the Myrtle Point Transportation Company, a corporation against the Port of Coquille River, a municipal corporation and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

Plaintiff sues as the owner of two river steamboats, the Dora and the Myrtle, to recover damages sustained by these craft October 7, 1913, in a catastrophe for which it is claimed the defendant is responsible. It appears that on the evening in question these boats were berthed in the north fork of the Coquille river a short distance above its confluence with the south fork. Some miles above this point the east fork of the river flows into the north fork. Plaintiff's boats were tied to the boom of Myrtle Point Mill & Lumber Company. On the evening of October 7, 1913, there was a substantial rise in the north fork of the Coquille, which brought down the river considerable drift including brush which the defendant had cut on the east fork during the preceding summer. The boom was carried away and plaintiff's boats went with it. The boats were driven on the jetty at the mouth of the north fork and sustained material damage.

The complaint charges defendant with negligence in depositing fallen trees and brush in the east fork of the river. It is alleged that the brush so deposited was gathered "into a slowly moving splash dam" as the water rose October 7 1913, and that it gained in momentum as it proceeded down stream, sweeping away the boom and the boats fastened thereto. It is averred that the defendant should have foreseen this result.

The answer admits many of the allegations of the complaint, but denies the deposit of brush in the stream, and denies all want of care on the part of the defendant. It alleges affirmatively that the injury sustained was due to the negligence of Myrtle Point Mill & Lumber Company and the contributory negligence of plaintiff. Plaintiff is charged with negligence in leaving its boats without a watchman and navigator on each of them; it is averred that by a proper lookout and by efficient navigation the boats could have been steered away from the obstructions on which they grounded. Contributory negligence is also predicated on the tying of the boats to the boom, which is alleged to have been old decayed, and weakened, and plaintiff is charged with notice of its condition.

The reply denies the affirmative allegations of the answer.

The case was tried before a jury which found for plaintiff. Defendant appeals from a judgment entered on this verdict.

John D Goss, of Marshfield (J. O. Stemmler, of Myrtle Point, and John C. Kendall and Herbert S. Murphy, both of Marshfield, on the brief), for appellant. A. K. Peck, of Marshfield (Peck & Peck, of Marshfield, and E. D. Sperry, of Coquille, on the brief), for respondent.

McCAMANT, J. (after stating the facts as above).

The most strenuous insistence of defendant is that the court erred in denying its motion for a nonsuit.

"Upon a motion for a nonsuit, every intendment and every reasonable inference must be made in favor of plaintiff, and the court must assume those facts as true which the jury can fairly find from the evidence." Thienes v. Francis, 69 Or. 165, 170, 138 P. 490, 492.

Examining the testimony in the light of this rule, we find ample evidence that during the summer of 1913 the defendant slashed the brush and trees on the banks of the east fork of the Coquille; that a large amount of the brush and débris fell into the stream, the obstruction thereto being so great that a skiff could not be propelled up or down the stream, and at some places one could cross the stream on the brush; it was the expectation of the defendant that so much of the brush as was in the bed of the river would float out on the first rise in the autumn; this rise came on October 7, and there is evidence that a quantity of brush came out as alleged in the complaint, carrying a great wall of water with it. The jury was entitled to find from the evidence that this brush and the water that was behind it carried out the boom and plaintiff's boats. The east fork of the Coquille is a navigable stream during a portion of the year, and it is a tributary of the Coquille, which is one of the arteries of commerce in Southwestern Oregon. The deposit of the brush in the stream was in violation of section 13 of the Act of Congress approved March 3, 1899 (30 Stat. at Large 1152) hereafter quoted. Plaintiff proved furthermore that at a meeting of the defendant held December 17, 1913, the minutes of the defendant admitted that the brush and trees had torn out the boom of the Myrtle Point Mill & Lumber Company. There was a dispute as to the accuracy of these minutes, and after the bringing of this action the defendant undertook to amend them, but at the conclusion of plaintiff's case the evidence justified the jury in finding that defendant had admitted that the carrying away of the boom was chargeable to the brush and trees which defendant had deposited in the stream. It may be said parenthetically that the correction undertaken to be made in the minutes did not greatly improve defendant's position; it appeared that the minutes of December 17, 1913, had been approved and that, at a later meeting of the defendant, the commissioners approved the report of a committee which held that "the foreman in charge was negligent in not having all the trees and brush cut into as short lengths as per his instructions."

The evidence was sufficient to be submitted to the jury on the question of defendant's negligence. The motion for a nonsuit is based in part on defendant's contention that plaintiff was guilty of contributory negligence in the respects charged in the answer.

The evidence as to the condition of the boom is conflicting, and we cannot say that it was negligence as a matter of law for plaintiff to tie its boats thereto. Nor can we say that plaintiff was negligent in failing to leave a lookout and a navigator on each of these boats on the evening in question. Plaintiff's evidence is to the effect that, at the time when the boats were berthed, there was but a slight rise in the river and there was nothing to indicate impending trouble. To hold as a matter of law that the owner of a small river steamboat, berthing her near the head of navigation on a river under normal conditions, is obliged to keep her steam up and to maintain a lookout "and an efficient person in charge" is to lay a heavier burden on navigation than seems reasonable.

The question of plaintiff's contributory negligence was for the jury. Defendant cites on this point: The Mary E. Cuff (D. C.) 84 F. 719; The Niobe (D. C.) 31 F. 164; The On-The-Level (D. C.) 128 F. 511; and The William E. Reis (D. C.) 143 F. 1013, 1016. These were all admiralty cases in which the court was judge both of the facts and of the law. It was held in each of those cases that the vessel should have been left in charge of a lookout or watchman, but the circumstances were widely different from those in the case at bar. In three of the cases there was notice of approaching storm or flood. In The Niobe the fault consisted in violating a harbor regulation. In The William E. Reis a vessel weighing 8,000 tons had been left near the mouth of the Cuyahoga river in charge of a boy, the water in the river was rising and the conditions demanded a slackening of the lines of the vessel which the boy was unable to do.

There is evidence that the negligence of Myrtle Point Mill & Lumber Company contributed to the catastrophe, but this on familiar principles does not excuse defendant.

It is suggested that defendant was organized for the improvement of Coquille river and that the work complained of was a lawful work looking to the betterment of navigation on the upper river. Defendant's evidence shows that navigation has been improved by the work done.

But a lawful work done by or at the instance of a municipal corporation must be done with due regard to the rights of others, and if it be done negligently a party injured by such negligence is entitled to recover. Giaconi v. Astoria, 60 Or. 12, 113 P. 855, 118 P. 180, 37 L. R. A. (N. S.) 1150; Warren v. Astoria, 67 Or. 603, 135 P. 527; Portland Gas Co. v. Giebisch, 84 Or. 632, 165 P. 1004.

Plaintiff was permitted to prove over the objection of defendant that it is the general custom on Coquille river not to leave a watchman on a steamboat at night when it is tied to its moorings, and this is assigned as error.

It is true, as contended by the defendant, that a party is not to be excused from negligence on the ground that others are in the habit of acting negligently. Where a statute or a valid harbor regulation requires a certain degree of care, the violation of such statute or regulation is not to be excused on the ground that it is generally violated.

On the other hand, when there is no absolute standard of care fixed by law, evidence of what is usual is often of value in assisting a court or jury in determining the issues on a charge of negligence. 1 Thompson on Negligence,§ 32; Richardson v. Klamath Steamship Co., 62 Or. 490 498-500, 126 P. 24. Great value is attached to this character of proof in the admiralty courts. Lamb v. Parkman, 14 F. Cas. 1019, 1022; The Titania (D. C.) 19 F. 101, 107; The...