Southern Ry. Co. v. Reeder

• Decision Date: 02 July 1907
• Citation: 44 So. 699,152 Ala. 227
• Parties: SOUTHERN RY. CO. v. REEDER.
• Court: Alabama Supreme Court

44 So. 699

152 Ala. 227

SOUTHERN RY. CO. v. REEDER.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Lauderdale County; Ed B. Almon, Judge.

Action by John T. Reeder against the Southern Railway Company for damages to plaintiff's steamboat. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

It is alleged that the boat was injured by coming in contact with appellant's drawbridge at Decatur, where the same spans the Tennessee river, a navigable stream, and the negligence is predicated upon a failure to open the draw on proper signal. The pleas were the general issue and contributory negligence. The facts are substantially as follows Appellants owned and operated a drawbridge across the Tennessee river, across which is built and operated a track for the passage of trains. That the Tennessee river is a navigable stream, on which appellee was operating a steamboat. That appellant had established signals to be given by boats for the opening of the draw, and on the 22d of October, 1899, the appellee went up the river with his boat and gave the signals for going through. The signals were four distinct blasts of the whistle, given at intervals until understood; and the signal from the keeper of the bridge that the signal was understood was by going out on the draw span with a white light. On the evening of the day above mentioned appellee returned with his steamboat down the river, and when about 1 1/2 miles above the river gave the signal for opening the span. About a mile above he gave the second signal, and about half mile above the third signal. The evidence is in conflict as to whether the second signal was the signal for opening the draw, or was a signal that the boat would land at the wharf above the bridge; the signal for landing being one long, one short, and one long blast of the whistle. It seems from the evidence that, after the first opening signal was given, a train was permitted to pass over the draw, although the boat had the right of way. The evidence tended to show that the boat was slowed down after the first signal, and that after the last signal the steam was shut off and the boat allowed to float. The evidence was in conflict as to whether or not there was time after the last signal to open the draw before the boat got to the bridge. When the boat got to the bridge it was discovered that the bridge was only partially opened, whereupon the pilot undertook to put on steam and back his boat, and in doing so broke the cam yoke rendering the boat unmanageable, whereupon the pilot steered the boat up against the stationary span of the bridge causing the injuries alleged, and that this was necessary, as there was danger of the draw span being knocked off upon the boat, destroying the lives of the passengers on the boat. There was judgment for plaintiff in the sum of $935, and defendant appeals.

Humes &amp Speake, for appellant.

Simpson & Jones, for appellee.

McCLELLAN J.

A drawbridge, constructed and maintained under and according to proper authority over navigable waters, is not an unlawful obstruction to navigation; but the owner of the bridge rests under the duty and obligation to provide for the safe and prompt passage of vessels through the draw. Reasonable care and diligence in the use and control of the bridge is required of those in whose custody it is; and the want of such care and diligence in the performance or omission to perform the duty stated and assumed carries liability for proximately resulting injuries. Sections 3445 and 3446, Code 1896, are penal in their nature, and so must be strictly construed. Observing this rule of construction, we cannot agree with counsel for appellant that they establish exclusively the signals to be given by vessels intending to pass a drawbridge; nor with its contention that for injuries proximately resulting from the negligence of the bridge proprietor or his employés, or from that of a boat owner, the penalty prescribed by the cited statutes is the sole and excluding remedy of the injured party. In the latter matter no such intention to exclude all other redress can be gathered from the statute, even after exempting it from the familiar rule of construction applicable to penal enactments.

In respect to the set of signals mentioned in section 3445, the same observations are pertinent. That notice of an intention or desire to pass through a drawbridge may be properly conveyed to the tender by means other than the signals described in this section is not negatived by any language in it. The penalty stipulated, of course, could not be exacted unless the statutory conditions precedent were strictly observed. But this is far from excluding to craftsmen and bridge proprietors, suffering injuries attendant upon negligent conduct and seeking redress therefor in damages the right to establish and use a signaling method different from that provided by the statute. The gist of the action is the alleged negligent conduct of the bridge tender in opening the draw after he was by proper signals, and these given in reasonable time, advised of the intention of those in control of the approaching vessel to pass the draw. Of course, when so advised, it was his duty to promptly so adjust the draw as that safe passage could be effected. In reliance upon the performance of this duty by the defendant's employé, those in charge of the craft had the right to approach the bridge at such speed and in such control of the boat and to such nearness to the bridge as reasonable prudence and care under all the circumstances, would require. We apprehend that, short of an approach to a drawbridge so near or under such head, or under such conditions of water and wind or other weather surroundings,...