Silver v. Missouri Pac. Ry. Co.

• Decision Date: 10 March 1890
• Court: Missouri Supreme Court
• Parties: SILVER v. MISSOURI PAC. RY. CO.

13 S.W. 410

101 Mo. 79

SILVER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 10, 1890.

DRAW-BRIDGE — OBSTRUCTION OF NAVIGATION.

1. A bridge company built a draw-bridge over the Missouri river, under authority of Act Cong. May 11, 1872, which provided that such bridge should not interfere with the free navigation of the river; that, if built as a draw-bridge, ii should be a pivot draw-bridge, with the draw over the main channel of the river at an accessible and navigable point, with spans of certain length on each side of the pivot pier, and that the piers should be parallel to the current. The bridge company built their bridge with two draw-rests, one above and the other below the pivot pier, and 140 feet distant from it. Afterwards the bridge company leased the structure to the defendant. Three years after, plaintiff's boat, while attempting to go through the draw during a high stage of water, was driven against one of the piers by the current, and sunk. The plaintiff charged that the piers were not parallel to the current, and that the draw-rests above the bridge caused a cross-current, which drove the boat against the pier. Held that, if the bridge was so built that the piers were parallel to the usual and ordinary course of the current, it was a sufficient compliance with the act, and this question was properly one for the jury.

2. The burden of proof is on the plaintiff to show that the draw-rests were not necessary or lawful structures in the operation and maintenance of the bridge.

3. Since the act authorizing the bridge authorized the maintenance of such structures as were necessary to the operation of the bridge so long as the free navigation of the river was not obstructed, in the absence of testimony showing that the draw-rests were unauthorized or dangerous structures, the question as to their character should not be submitted to the jury.

4. And the plaintiff, in order to recover, must show that defendant had notice or knowledge of the fact that the piers of the bridge were not parallel to the current of the river; but such notice of knowledge may be shown by facts and circumstances, and not necessarily by direct evidence. BARCLAY, J., dissenting.

5. When the act of congress under which a draw-bridge was built provides that, where any litigation arises from any obstructions or alleged obstructions to the free navigation of the river, the cause may be tried in the district court of the United States, etc., such provision does not divest the state courts of jurisdiction of such causes.

Appeal from circuit court, Lafayette county; RICHARD FIELDS, Judge.

This action was brought by David H. Silver against the Missouri Pacific Railway Company for damages for the loss of his steam-boat, caused by injuries received while passing through a bridge over the Missouri river, leased by the defendant. There was judgment for plaintiff, and defendant appealed.

T. J. Portis and W. S. Shirk, for appellant. Cosgrove & Johnson and Draffin & Williams, for respondent.

BLACK, J.

The plaintiff brought this suit in the Cooper circuit court to recover damages for the loss of his steam-boat, occasioned by injuries received while passing through the bridge over the Missouri river at Boonville. The plaintiff recovered a judgment on the second trial in the Lafayette circuit court for $14,000. The act of congress of May 11, 1872, (17 U. S. St. at Large, 99,) authorized the Boonville Bridge Company to build a bridge for the use of railroads over the river at Boonville, under the limitations therein provided. The act then provides, among other things, "that said bridge shall not interfere with the free navigation of said river beyond what is necessary in order to carry into effect the rights and privileges hereby granted." It is further declared that if the bridge is built as a draw-bridge it "shall be constructed as a pivot draw-bridge, with a draw over the main channel of the river at an accessible and navigable point, and with spans of not less than 160 feet in length in the clear on each side of the central or pivot pier of the draw, * * * and the piers of said bridge shall be parallel with the current of the river." It is further declared "that any bridge constructed under this act, and according to its limitations, shall be a lawful structure," and "that the structure herein authorized shall be built under and subject to such regulations for the security of the navigation of said river and lake as the secretary of war shall prescribe; and the said structure shall be at all times so kept and managed as to offer reasonable and proper means for the passage of vessels through and under said structure, and the said structure shall be changed at the cost and expense of the owners thereof, from time to time, as congress may direct," etc. The bridge was built in 1873 by the Boonville Bridge Company as a draw-bridge, and the spans conform in length to the act of congress. There are also two "draw-rests," as they are called, one above and the other below the pivot pier, each at a distance of 140 feet from it. They are wooden structures, filled with stone, and rise above the surface of the water, and are 24 or 25 feet wide; the length does not appear to be given in the evidence. After the bridge was built by the Boonville Bridge Company, it was leased to the Missouri, Kansas & Texas Railway Company, and by that company leased to the defendant. The admission in the case is that defendant has maintained and controlled the bridge without change in the construction of the piers or draw-rests since December, 1880. The plaintiff's boat attempted to go down stream through the draw on the 30th June, 1883, at a very high stage of water, and was thrown over against the stone pier, south of the pivot pier, and received injuries from which she became disabled, and sunk in less than an hour. The substantial charges relied upon as grounds of recovery on the trial are that the piers of the bridge were not parallel with, but diagonal to, the current of the river; that the up-stream draw-rest was not authorized by the act of congress; that these obstructions caused a cross-current to flow towards the south or Boonville shore; and that the plaintiff's boat was thrown against the south shore pier by reason of these obstructions and cross-current. The answer set up mismanagement and contributory negligence on the part of the servants of the plaintiff in charge of the boat.

The evidence for the plaintiff tends to show that the channel of the river is along the south or Boonville shore for a considerable distance above the bridge; that it begins to leave that shore about 300 yards above the bridge, and goes in a north-east direction, striking the Howard county shore about one mile below the bridge. Many witnesses testified that there has been no change in the current since the bridge was built, and that the piers and draw-rests are not, and never have been, parallel with the current. Some of them say the current runs diagonally between the piers, and others a little quartering. A county surveyor testified that the bridge did not stand at right angles with the current by 10 or 11 degrees. There is also evidence tending to show that the effect of the water striking the draw-rest at an angle is to create a cross-current towards the Boonville shore, and that this cross-current makes it difficult to go through the draw with a steam-boat. The evidence introduced on the question of contributory negligence, and in refutation of it, tends to show that to go down stream through the draw it is necessary to go out from the south shore some distance above the bridge, and then get in line with the draw when open, and to steer close to it. On the other hand, the evidence of the engineers who built the bridge is that they placed floats in the water, and in this way got the line of the current, and placed the bridge at right angles to this line, and that the piers are, and always have been, parallel...