City of Chicago v. Mullen

JENKINS, Circuit Judge; (after stating the facts as above). A careful review of the evidence fully satisfies us that the collision of the bridge with the rigging of the schooner and the resulting damage to, the schooner were caused by the fault of the bridge tender in charge of the Wells street bridge. This bridge was operated by electricity. The failure to stop the bridge upon the centre protection was clearly owing, as the evidence discloses, to the failure of the bridge tender to shut .off the current when the bridge had reached the proper position. He attempted to stop it by means of a foot brake and without turning off the current. After the injury had been done, another person swung the bridge back to the approach and to its correct position, and closed the bridge. The machinery was in perfect working order, and could have been readily managed by a competent person attentive to his duty. It was a case of gross incompetency or gross negligence. The bridge tender had been employed in that work not quite two months at the time of the accident. Prior to that time he had never operated an electric motor and knew nothing of electrical machinery; he was a novice to the business, and lost his head at a .critical moment. It is said that notwithstanding this the tug had no right to enter the draw until the bridge was swung and locked, because it is forbidden by the ordinance and the ball was up. There is much dispute in the evidence touching the latter fact, but the large preponderance of the evidence goes to show that the bridge tender lowered the red ball either when the bridge commenced to swing or during the process of swinging and before the tug reached the draw. We have critically searched the record upon this question, and are of opinion that the court below was fully justified in finding that the ball was lowered.' The ordinances pleaded are upon their face provisions for the protection of bridges, and so far as they are reasonable should be sustained by the court. They provide for signals by day and by night, an elevated red ball being used in the daytime as a signal to those plying the river that the bridge is closed. When that signal is lowered it tells an approaching vessel that the bridge is open and that it may safely proceed. The ordinance, it is true, declares it to be unlawful to attempt to approach nearer than the bridge protection while the bridge may be opening or closing. But the city by the same ordinance, and practically by its conduct and the conduct of its agent having charge of the bridge, has designated the means by which those in charge of vessels plying the river shall know whether the bridge is or is not 295 opened for passage. The ordinance does not require, nor does common sense demand, that vessels navigating the river shall heave to at each of the numerous bridges that span the river, and critically examine whether the bridge has been swung and whether it has been locked. The city has designated the means by which they are to be informed of the fact. If the red ball be elevated, it is a signal that the bridge is closed; if it be lowered, it is a signal that it is open and that vessels are free to come and go. The lowered ball is an invitation to the vessel signaling for the opening of the bridge that the way is free and that it should enter the draw. This is a reasonable construction of the ordinances, and the only one, as we think, of which they are susceptible. It is the construction which the city itself has placed upon its regulations. Its answer distinctly asserts that the red ball when down is a signal to vessels to proceed through the draw. When, therefore, it is established that the red ball was lowered, the bridgé tender invited the tug to come on with her tow and to enter the draw. The city cannot escape the consequences of the gross negligence of its agent in charge of the bridge, because the tug accepted the invitation of the bridge tender upon the assurance that the way was clear, and that the draw of the bridge was open for her passage. The court below, finding the ball' signal to have been lowered, divided the damages upon the theory that nevertheless the tug was in fault in proceeding before the bridge was openéd and locked, notwithstanding the invitation to proceed. Therein the trial court erred. Upon the appeal of the city of Chicago the decree is affirmed. Upon the appeal of the Dunham Towing & Wrecking Company the decree is reversed, with costs to be taxed against the City of Chicago, and the cause is remanded to the court below, with direction to pronounce for the libelant for his damages in solido against the City of Chicago, and to dismiss the libel as to the Dunham Towing & Wrecking Company, with costs to be taxed against the City of Chicago.