Senko v. La Crosse Dredging Corp.
| Decision Date | 25 September 1957 |
| Docket Number | Gen. No. 55 |
| Citation | 147 N.E.2d 708,16 Ill.App.2d 154 |
| Parties | Jacob SENKO, Plaintiff-Appellee, v. LA CROSSE DREDGING CORP., Defendant-Appellant. M 21. |
| Court | United States Appellate Court of Illinois |
Robert L. Broderick, East St. Louis, for appellant.
Moran & Beatty, Granite City, for appellee.
This case has been previously considered by this court, with decision reported in 7 Ill.App.2d 307, 129 N.E.2d 454. Three points were argued, but we disposed of the case by outright reversal on the first ground, i.e., that plaintiff was not a 'member of a crew' within the meaning of the Jones Act, so that his only right was under a compensation act, state or federal.
We found 'no dispute as to the facts material to the first defense.' 7 Ill.App.2d at page 309, 129 N.E.2d at page 455. Therefore, it was held (7 Ill.App.2d at page 314, 129 N.E.2d at page 457) 'the provision of law making the compensation act the exclusive remedy of employees of vessels other than the master and members of the crew, is binding on the court, and cannot be evaded by asserting that a jury's notion of what law should be applied nullifies that provision where there is no substantial dispute as to the relevant facts.' The Supreme Court of the United States reversed this decision, 352 U.S. 370, 77 S.Ct. 415, 417, 1 L.Ed.2d 404, holding that in the determination of whether a person was a member of a crew 'juries have the same discretion they have in finding negligence.'
The case is remanded to this court to review the other issues presented, of which the most important were: 2, the dredge was not operating in navigable waters; and 3, there was no evidence of negligence of the defendant, and no basis to apply the doctrine of res ipsa loquitur.
As to number 2, the place in question consists of back waters of the Mississippi called Gabaret Slough, which had not been used for navigation, although possibly small craft had plied therein, for fishing or pleasure. It was being dredged out to provide a by-pass around a rocky portion of the river, one end opening on the river, and the other on a canal connected to the river. The defendant contended that the slough was not a part of the navigable waters of the United States, since it had not been so used previously, and was not in condition for such use. Of course, it has since become a part of the navigable waters of the Mississippi. But the defense assumes that it was not a part of navigable waters until all the improvements were completed.
The defense relies mainly on the case of Iowa-Wisconsin Bridge Co. v. United States, 84 F.Supp. 852, 114 Ct.Cl. 464, in which sloughs connected to the Mississippi were declared not navigable waters. However, those sloughs were not only not then navigable, but there is nothing in the case to indicate that they could ever be made usable and useful to trade and commerce. The present case is distinguishable in this regard, when considered in the light of other authority.
The fact that waters are being used extensively for commerce is most persuasive that they are navigable, but lack of such use does not take it out of the power of Congress to make it navigable for future use. Economy Light & Power Co. v. U. S., 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847.
A body of water comes under the term 'navigable waters of the United States' if it is used, 'or is susceptible of being used, in its ordinary condition, or with reasonable improvements, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' Davis v. U. S., 185 F.2d 938, 941, certiorari denied 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 673. In United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 299; 85 L.Ed. 243, the court was considering a stream which was to be improved extensively to make it navigable. The following are some of the pertinent rules announced:
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Crum v. Southshore Ry. Co., 7805
...in the Ross case; that Thompson Creek has been shown to be navigable in the past; and that the case of Senko v. LaCrosse Dredging Corporation, 16 Ill.App.2d 154, 147 N.E.2d 708 (1957), impliedly overruled the Ross As to the first contention, the Trial Court in the present case held that the......