State of Maryland to Use of Pryor v. Miller

• Decision Date: 21 June 1910
• Citation: 180 F. 796
• Parties: STATE OF MARYLAND, to Use of PRYOR et al., v. MILLER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

180 F. 796

STATE OF MARYLAND, to Use of PRYOR et al., v. MILLER et al.

United States District Court, D. Maryland.

June 21, 1910

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Robert H. Smith, Raymond S. Williams, Arthur L. Jackson, Henry W Fox, Jacob S. New, Edward B. Eisenbrandt, and Philip B. Watts, for libelants.

Morris A. Soper, Edgar Allan Poe, Edward H. Burke, James J. Lindsay, and Arthur D. Foster, for respondents.

ROSE District Judge.

On August 5, 1909, the gasoline launch Oukid struck on submerged piles in the Patapsco river. It sunk. Five persons then on board were drowned. At least one claims to have been severely and permanently injured.

By the law of Maryland:

'Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the persons who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured. * * * Every such action shall be for the benefit of the wife, husband, parent and child of the persons whose death shall have been so caused, and shall be brought by, and in the name of, the state of Maryland for the use of the person entitled to damages, and in every such case the jury may give such damages as they think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought. And the amount so recovered * * * shall be divided among the above-mentioned parties in such shares as the jury by their verdict shall find and direct. ' Code Pub. Gen. Laws Md. 1904, art. 67, Secs. 1, 2.

Original and intervening libels have been filed by the state of Maryland to the use of James V. Pryor and Annie M. Pryor, parents of Frank S. Pryor, and to the use of Abraham Brown, husband of Katherine E. Brown, and to the use of Charles L. Brown, Ralph A. Brown, Eleanor M. Brown, and Edgar K. Brown, children of Katherine E. Brown, and to the use of George Thomas Leach and Eva C. Leach, parents of Willard T. Leach; Frank S. Pryor, Katherine E. Brown, and William T. Leach being three of the persons who lost their lives by the sinking of the launch. Joseph C. Houck and Mary A. Houck, his wife, were also libelants claiming to recover, the latter for injuries suffered at the time of the accident, and the former for the loss of the service and companionship of his wife thereby occasioned. James G. Pryor, the owner of the launch, was also a party to the libel seeking to recover for the damage to it.

I find from the evidence the facts to be as follows: One of the respondents, Andrew Miller, is now, and for a number of years has been, a builder of wharves and bridges. Some years ago he bought a tract of some eight acres of land lying along the north shore of the Patapsco river in Baltimore county about two miles east of the corporate limits of Baltimore City. He had the deed for this property made out to his wife, who is an invalid and has been such for a number of years. Since the land was conveyed to her he testifies that he has managed it as he saw fit. He has not accounted to her for its rents or profits because he has spent much more than they amounted to upon it.

More than three years before the accident he decided to build a timber bulkhead from each end of the shore line of his land. These bulkheads were each to be about 600 feet long and were to run out into the river substantially at right angles with the shore line. It was his intention at some time to connect the off shore ends of these bulkheads with each other by the construction of another bulkhead in a direction which would be substantially parallel to the shore line.

For convenience, that one of these bulkheads which ran into the river from the southwestern corner of the Miller land will be called the 'South bulkhead,' that which ran out from the Northwest corner the 'North bulkhead,' while the third or connecting bulkhead will be called the 'Western.'

He expected some time to fill in the space inclosed by these three bulkheads and the shore line so as to make such space fast land. When this was done his shore would be carried out about 600 feet. Some eight acres would be added to its area. Apparently this filling in was to be postponed until some indefinite time in the future. In the meanwhile his plan was to construct the North and the South bulkheads and a part of the West. There would thus be left a space unobstructed by piling. Through this space his pile drivers could be towed to and fro and timber and other materials could be brought into and taken out of the sheltered lagoon or harbor formed by the construction of a North and South and a part of the West bulkheads. Such a sheltered place would be of value to him, as his shore was otherwise much exposed to the wind and waves. For the purpose of storing his timber and other material within the lagoon, he planned to erect platforms standing out in its waters.

The law forbade the construction of wharves, piers, or bulkheads on the Patapsco river within four miles of Baltimore City without a permit from the harbor board of Baltimore City, which permit he obtained in the summer of 1906.

Miller testified that he intended to employ his men and machinery in doing this work when he was not using them in his business of building wharves and driving piles for other people. The work at this shore therefore proceeded probably much more slowly than would otherwise have been the case.

By the early summer of 1909 the South bulkhead had been completed, or nearly so. Two or more rows of piles had been driven for its entire length. They had all been cut off and capped. For more than half the distance a completed platform had been built on them.

Work had begun on the West bulkhead. Beginning at the West and of the South bulkhead four rows of piles had been driven northward for something over half the distance between the North and the South bulkheads. These piles had not been cut off. At the time of the accident they were standing about seven feet above the water. All the piles for the North bulkhead had been driven. For 175 feet, or thereabouts, from the shore they had been cut off and capped. The platform over them was completed. For the next 200 feet, or thereabouts, they had been cut off but had not been capped. On the day of the accident their tops appear to have been from a foot to 15 inches below the water line. For the remaining 200 feet of the North bulkhead-- that is, the 200 feet farthest out-- the piles were still standing as they had been originally driven. They had not been cut off and projected from two to six feet above the water. The North bulkhead did not run out for the whole distance in one line. At a point about 400 feet from the shore it turned at right angles and ran south for some 40 feet. Then, making another right angle, it continued its westward course. The piles of the North bulkhead which on August 5, 1909, were visible above the water were those which extended from its western end to the bend in its line. Before any of these bulkheads were built, the water, afterwards partially inclosed within them, was part of the Patapsco river. Nothing lay between it and the main ship channel except an expanse of open and navigable water. The respondent Miller offered evidence which showed that that water was still navigable not only at the time of the accident but at the time of the hearing of the case in court. One of his witnesses, a tugboat captain, testified that he supposed he had taken his tug, drawing from 6 to 8 feet of water, into the lagoon 500 times. He said he had been in as late as the latter part of May or the first of June, 1910.

Miller had fitted up his land as a picnic resort. He had equipped it with patent swings, bowling alleys, dancing pavilions, rifle ranges, and the like. During the summer of 1910, and before the accident, it had been frequently rented by him as such a resort.

Miller did not undertake to say how long before the accident the submerged piles in the North bulkhead had been in that condition. The evidence satisfies me that they had been cut off at least six weeks before the date of the accident, and perhaps much longer. During those six weeks a number of boats struck on these piles. In the latter part of June, 1909, Landmark Lodge A.F. & A.M. held a picnic at Miller's shore. Messrs. Robert L. Gill and W. G. Speed, members of the Baltimore bar, went down to the picnic in a launch. They ran on the same piles that afterwards caused the accident. They were moving at half speed at the time. Their launch had a bow four inches thick. They were aground for some while, but their boat was not injured.

On July 4, 1909, George W. Williams attended the picnic of the Canton Methodist Episcopal Church at the same shore. He took some children out in a rowboat and went aground on the same piles. He saw another boat fast on them.

One Charles M. Lubben was the owner of a launch. He had been in the habit of using it for hire in and about the harbor of Baltimore.

One Sunday early in July, 1909, he was called on during a squall to take a baseball club from Wagner's Point to Miller's Park. He had 32 people on board. He ran on these same piles. His launch was jambed between two of them. He made the people on board step to the port side of the launch and keep it fast down on the piles. There were two good swimmers aboard. They jumped overboard with a long line and swam ashore. Three or four rowboats came from Miller's Park and took off the launch all but four or five of those in it. When so lightened it floated off. It was...