Williams v. Edward Gillen Dock, Dredge & Construction Co.

• Decision Date: 30 June 1919
• Docket Number: 3256.
• Citation: 258 F. 591
• Parties: WILLIAMS v. EDWARD GILLEN DOCK, DREDGE & CONSTRUCTION CO.
• Court: U.S. Court of Appeals — Sixth Circuit

258 F. 591

WILLIAMS v. EDWARD GILLEN DOCK, DREDGE & CONSTRUCTION CO.

No. 3256.

United States Court of Appeals, Sixth Circuit.

June 30, 1919

S. H. Holding, of Cleveland, Ohio, for plaintiff in error.

H. D Goulder and Thos. H. Garry, both of Cleveland, Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and WESTENHAVER District judge.

WESTENHAVER District Judge.

Plaintiff in error, also plaintiff below, brought this action to recover damages for the wrongful death of one G. A. Williams. A trial to a jury was had, and after all the testimony for both sides had been introduced the District Court, on motion directed a verdict for the defendant. This action of the court below is the only error assigned.

The decedent was an employe on a lake steamer named Junior. This steamer on the night of May 9, 1915, between 11 and 12 o'clock, as it was entering Cleveland harbor, struck against the inside corner of the east end of the breakwater. As a result the boat sank and the decedent was drowned. This collision of the steamer with the breakwater, it is contended, was due to the absence of any light on or near its east end, and on this hearing counsel for both parties make the answer to the question involved to turn on whether or not the duty rested on the defendant to maintain such a light.

The defendant on July 2, 1914, had made a contract with the proper engineering officer of the United States government to complete the construction of 6,601 feet of the east breakwater extension of the Cleveland harbor, including the east end against which this steamer collided. This work was divided into seven sections, numbered from west to east and from 1 to 7, inclusive; the first six sections being each 1,000 feet in length, and the seventh 601 feet in length. These sections were to be constructed in the order given from west to east, and work was prohibited on more than two sections in advance of the completed superstructure, except by special permission of the engineer in charge. This engineer, however, directed that the work first to be done should be the completion of the east end in the inverse order stated. By December 1, 1914, not less than 1,800 feet at that end was completely finished, and in such a manner that no further work or labor was required thereon by the defendant under its contract. The contract also provided that acceptance would be made by the engineer on the written request of the contractor, when a continuous length of 100 feet had been completed, as was required, and to his entire satisfaction. A request was made of the engineer in charge for an acceptance of the 1,800 feet thus completed, and December 16, 1914, the engineer certified in writing that 1,800 linear feet at the east end had been satisfactorily completed and that the same was thereby accepted.

The contract also required defendant to maintain at its own expense lights and signals required by the engineer or by the regulations of the United States Lighthouse Board. The regulations of the United States Lighthouse Board were not introduced in evidence, and the record does not indicate clearly what specific requirements, if any, the engineer in charge made as to lights during the period of construction. A gas buoy light was, however, maintained by the defendant at the east end of the breakwater from the time it began work until about December 1, 1914, when all construction work on the breakwater was, owing to weather conditions, suspended for the season. The defendant then removed its gas buoy light and stored it on the United States government pier in the Cleveland harbor. Maj. P. S. Bond, the government engineer in charge of this work, established, upon the removal of the gas buoy, a light on the east end of the breakwater. An upright pole with a cross-arm was erected, with devices to raise and lower the light. Thereafter, and until the lake was frozen over, and again as soon as the ice disappeared in the spring, the engineer, and subordinate employes under his direction and control, maintained and took care of this light.

The evidence tends to show that on the afternoon of May, 9, 1915, at about 3 o'clock, these employes filled the lamp, lighted it, and placed it in position; but, in our opinion, there was sufficient evidence to go to a jury tending to show that during the night, and preceding the time of the accident, it was not lighted or burning.

No question seems to be made by counsel for defendant that if, on these facts, a duty rested on defendant to maintain this light after the acceptance by the engineer in charge of the east 1,800 feet of the breakwater, the issues should have been submitted to the jury. This is also our opinion. The lake at this point was used more or less by all kinds of craft plying to points east of Cleveland to enter and leave the harbor. This use of the lake at this point was known to the engineer in charge and to the defendant and its servants. A legal duty, according to well-settled principles of law and numerous cases, was thereby imposed upon any one constructing an obstacle in water thus used to exercise reasonable care for the safety of all persons making use of the harbor, and this duty obviously required the placing and maintaining of a suitable warning light. Casement v. Brown, 148 U.S. 615, 623, 13 Sup.Ct. 672, 37 L.Ed. 582; Harrison v. Hughes (D.C.) 110 F. 545, approved and affirmed on appeal (3 C.C.A.) 125 F. 860, 60 C.C.A. 442; Wright & Cobb Lighterage Co. v. Snare & Triest Co. (3 C.C.A.) 239 F. 482, 152 C.C.A. 360. Defendant, however, contends, and the court below held, that after the completion and acceptance by the engineer in charge of the east 1,800 feet no further duty or obligation rested upon it to guard or protect that end by a warning light, but that all duty in that behalf became thereafter the obligation of the owner, and that in point of fact the owner, through its proper officer, assumed this obligation and undertook to perform it.

The general rule of law, subject to certain exceptions not now material to note, is that, after the contractor has turned over the work and it has been accepted by the owner, the contractor incurs no further liability to third persons by reason of the condition of the work, but the responsibility for maintaining it and protecting third persons against danger therefrom, or the use of it in a defective condition, or failing to give notice or warning of dangers to be apprehended from its existence, is then shifted to the owner. This rule of law does not seem to be disputed; in fact, counsel for both parties cite and rely in part on the same cases. See Salliotte v. King Bridge Co. (6 C.C.A.) 122 F. 378, 381, 58 C.C.A. 466, 65 L.R.A. 620, writ of certiorari denied 191 U.S. 569, 24 Sup.Ct. 841, 48 L.Ed. 306; Thornton v. Dow, 60 Wash. 622, 111 P. 899, 32 L.R.A. (N.S.) 968, and note; Philadelphia, etc., Railroad Co. v. Philadelphia, etc., Towboat Co., 23 How. 209, 16 L.Ed. 433; Richards v. O'Brien, 1 Ga.App. 111, 57 S.E. 907; Erie & Western Transportation Co. v. City of Chicago, 178 F. 42, 101 C.C.A. 170.

The considerations relied on by plaintiff to take the present case without this general rule are, as we understand them that the defendant's construction contract is an entire contract; that the obligation required thereby and also by the general rules of negligence law to maintain signals and lights, such as were required or necessary in the interest of the safety of third persons, continued until the contract was performed in its entirety; that the work had not been fully completed, turned over, and accepted; and that the completion and acceptance of the east 1,800 feet only, even if authorized, did not bring defendant within the protection of the general rule above...