Monongahela River Consol. Coal & Coke Co. v. River & Rail Storage Co.

DENISON, Circuit Judge (after stating the facts as above). In reciting these facts, we have put the defendant’s construction- upon every substantial matter of'dispute, because defendant’s main contention is that there was no evidence of its negligence sufficient to go to the jury, -and because we think that the undisputed facts, as thus recited and as thus colored in defendant’s favor, make a case clearly tending to show a right of action. There is no dispute between counsel as to the applicable rule of ,law. All agree that defendant was bound to use reasonable care to navigate its coal fleet past the city without injury to the shipping lying there, or to wharves or structures along the bank, and all agree that such care and caution as were reasonably prudent, under all the existing circumstances, form the ultimate measure of liability. We think it obvious, beyond the necessity for elaboration, .that to [613] permit this great raft, aptly described by counsel as “3% acres of coal,” to tumble through the harbor, wholly out of control, so that only good luck could preserve the shipping and wharves from destruction— that this would be actionable negligence, unless the reasonable necessities of prudent navigation at this point in the river justified the conduct which brought about this result, or (another form of saying the same thing) unless the result followed from conditions which could not have been reasonably anticipated and guarded against. If the fog and smoke which had settled down this morning had been an extraordinary and unprecedented condition, we would have a different question; for it cannot be required of navigators that they should guard against all possible abnormal and unusual conditions. The proof tended to show that there was a great amount of smoke from the city factories; and that, with the wind from a certain direction and with the atmosphere in a certain foggy condition, the high bluffs on which the city is situated would cause the smoke and fog to drop down in the harbor, as in a pocket, and that it was not unprecedented —indeed, not uncommon — to encounter, at about this point, banks of fog and smoke, nearly, if not quite, as bad as this. It is not to be implied that such a coal fleet should always be able to tie up when about to enter a fog bank, or even that it should always have means to stop when finding such a fog bank at a place where one may be anticipated. In many parts of the river, the danger from proceeding somewhat blindly would be small; but it is not too much to say that it may be negligence for a coal fleet, under very imperfect control, to proceed into such a fog báhk just above a city like Memphis, where the conditions are such, as have been described, and where the danger of great damage is imminent. That such conduct is, as matter of law, not negligent, cannot be said, unless there was no known and reasonable precaution which might have been adopted and which would have avoided or tended to avoid the damage. Three such precautions are suggested by this record. The first is that additional steamboat power should have been held in reserve for such emergen-» cy, subject to be summoned and available for instant use. It is not entirely clear that this remedy was feasible or would have been efficient, and it does not need further consideration. The second precaution which it is said might have been taken, is the providing of a suitable tying up station on the Arkansas bank, immediately above the city, instead of some distance above. The third is that the coal fleet might have been “double tripped” past the city and the bridge; that is, that one half of the barges might have been left at an upper landing station while the steamer and the tug brought down the other half and then returned for the remainder. The last seems to have been the familiar and common expedient used at all points where it was thought that the full-sized fleet would be dangerously unmanageable. It was not employed on this occasion only because, when- the fog came on, the fleet had passed the last existing station where it could be done; and defendant asks us to say, in substance, that it can avoid liability by so locating its landing stations that a disaster like this becomes unavoidable. We cannot approve that doctrine. The peculiar and well-known physical river and harbor conditions at this point, [614] coupled with the known fact that the harbor might be shut in by a-fog bank which could not be seen until the descending boat was almost upon it, amply justified submitting to the jury the question of defendant’s negligence upon either of two theories: That it should have established and maintained an additional landing place comparatively close above the city where a fleet could stop after harbor conditions could be seen, or, at least, close enough so that the fleet could receive recent and accurate information before it was too late to stop; or that, lacking such further landing place, the fleet should have tied up at the lowest existing one and “double tripped” past the city or obtained knowledge of conditions at that time, instead of proceeding on the strength of a report three hours old. We are cited to several cases (note1) in which it has been held that it was not negligent to navigate on the Ohio or Mississippi in a fog. It is not necessary to review these cases. Each depends on its own facts and is vitally dissimilar to the instant case in what we have considered the controlling facts. We find no prejudicial error in the assignments relating to the admission or rejection of evidence. The defendant presented a special request which required the jury to find a verdict for defendant, if it found certain recited conditions tending to show due care. This request was faulty because it undertook to make a verdict for defendant follow from a recital of only a part of the existing situation; it would have excluded from the jury each of the considerations which we have just stated as furnishing support for a verdict for plaintiff; It was not error to refuse the request. The judgment is affirmed, with costs. Footnotes [1] Bray v. Monongahela Co. (C. C. A. 3) 161 Fed. 277, 88 C. C. A. 323; Kenova Co. v. Monongahela Co., 56 W. Va. 70, 48 S. E. 844; The Porter, Fed. Cas. No. 11,285; The Joseph W. Gould (D. C.) 19 Fed. 785.