Director General of Railroads v. Eastern Steamship Lines, Inc.

DeCourcy, J.

The Director General of Railroads brought this action of tort to recover for injuries to the Sagamore bridge over the Cape Cod Canal, caused on July 31, 1918, when a steamer owned and operated by the defendant collided with the bridge.

The case was argued on the merits on December 8, 1922. Subsequently, at the request of the court, counsel filed briefs on the question whether by reason of the federal act of February 8,1899 (30 U. S. Sts. at Large 822, c. 121), the resignation of Mr. Hines as Director General, and the failure to substitute his successor Mr. Payne or the present incumbent Mr. Davis within the time prescribed by that act, has caused the action to abate so that it cannot now be prosecuted to final judgment on behalf of the United States.

It is by no means clear that Congress intended the act of 1899 to apply to such a case as this, where the right or duty upon which the action is founded is not personal to the officer named as a party, but is one of the body politic to which the office is attached. Thompson v. United States, 103 U. S. 480. Knights v. Treasurer & Receiver General, 236 Mass. 336. Even if an action would have abated at common law, when it was brought against an officer of the United States, on the death of the officer, — because suits against the sovereign may be maintained only in accordance with the terms of its express assent — it does not follow that an action brought by the United States, through a public officer, to protect its property from injury, would have abated. And no case has been called to our attention where the act of 1899 has been applied in such a case. See Cotton v. United States, 11 How. 329; Pooler v. United States, 127 Fed. Rep. 519.

But even assuming that this action came within the operation of the 1899 act, all doubt as to our jurisdiction to decide the case has been removed by the act of Congress approved on March 3, 1923, (42 U. S. Sts. at Large, 1443) amending § 206 of the Transportation Act, 1920. By its express provisions the present action may be “ prosecuted to final judgment . . . substituting at any time before satisfaction of any such final judgment . . . the successor in office.” We deem it unnecessary here to consider the statute beyond calling attention to its language, and to the case of Sack v. Director General of Railroads, ante, 114, decided at this session, where it was fully discussed. The contention that this statute deprives the defendant of any vested constitutional right in our opinion is not tenable.

As to the merits: The Herman Winter was a freight steamer, two hundred and eighty-eight feet long, forty-one feet beam, and fitted with a left hand propeller. She left New York about noon July 30, 1918, drawing fifteen feet of water aft and thirteen feet nine inches forward, and arrived at the Buzzards Bay entrance of the dredged channel of the canal sometime after midnight. According to the auditor’s report she passed through the draw of the Buzzards Bay or railroad bridge in the canal proper at 1:15 in the morning of July 31; passed through the Bourne Bridge at 1:18 a.m.; and after stopping her engines at 1:16, and running them slowly at 1:17 arrived at Sagamore Bridge, five miles beyond the railroad bridge, at 1:40 a.m. The weather was sufficiently clear to make the lights on either side of the canal and on the bridges plainly visible. There was no unusual wind, in fact it was almost calm. The steamer had a favorable current of about three knots an hour, and the height of the tide at this time was about two feet above mean low water. When the Herman Winter came in sight of the Sagamore Bridge, the draw — which was one hundred forty-two feet wide and well lighted — was open. Failing to hit the opening, she “ ran into and hit with her port bow a dolphin or bunch of piles standing there as an aid to navigation in passing through the draw, and her bow swinging to the southward, her stem struck the stationary part of the bridge about thirty feet south of the draw opening; she then swung down with her port side upon the south fender almost demolishing it, and thus caused the damage complained of.” The contention of the defendant was, in substance, that when the steamer was almost a quarter of a mile from the bridge, the bow sheered toward the port bank: that, although carefully handled, she became unmanageable, owing to the shallowness of the channel: that it was the legal duty of the plaintiff to maintain .the canal at a depth of twenty-five feet at mean low water, and he failed to do so.

There was a verdict for the plaintiff. The defendant’s bill contains numerous exceptions dealing with the auditor’s report, the admission and exclusion of evidence, and the instructions given and refused by the trial judge. A separate bill was filed to the order of another judge denying the defendant’s motion to recommit the auditor’s report.

1. The motion to recommit the report was addressed to the discretion of the court. It was based mainly on alleged erroneous rulings of law made by the auditor; but these were adequately dealt with by the trial judge, who fully instructed the jury on the law applicable to the case. So far as the motion sought a report of the evidence, no adequate reason for granting it was shown. There was no abuse of discretion in denying the motion. Tobin v. Kells, 207 Mass. 304.

2. It is provided in G. L. c. 221, § 56 “ . . . the court at the trial shall exclude any finding of fact which appears in the report [of the auditor] to be based upon an erroneous opinion of law, or upon inadmissible evidence.” In reliance on this, the defendant excepted to the judge’s refusal to exclude various- portions of the report. It contended that most of the findings were based upon an alleged “ finding of law that the doctrine of res ipsa loquitur applies to this case.” The first answer is, as stated by the trial judge, that there was no such “ finding of law ” by the auditor. What the auditor apparently did was to draw an inference of fact that the running of the vessel into the visible bridge, under ordinary weather conditions, unexplained, indicated that those in charge of the vessel were negligent. But even assuming that the auditor did apply the doctrine of res ipsa loquitur, and that he was not warranted in doing so, the defendant was not prejudiced thereby, nor by what the auditor said about presumptions from the unexplained facts. The trial judge instructed the jury that the auditor’s findings on the law were immaterial; and told them to disregard entirely the cases cited. He fully instructed them that the burden was on the plaintiff to prove that negligence on the part of those handling the Herman Winter caused the accident: and that the mere fact that the vessel hit the bridge would not be enough to prove such negligence. In short, if there was any erroneous ruling of law made by the auditor, it did not injuriously affect the substantial rights of the defendant. Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf. Co. 208 Mass. 121, 133.

In like manner the statement of the auditor, that those in charge of the steamers “were bound to have full knowledge of shoals and other obstacles or difficulties in navigation regularly existing there ” was apparently a finding of fact, based upon evidence before him. Even if regarded as a statement of law,, it does not differ from the view expressed by the judge in his charge, to which no exception was taken, in the words: “ The captain of a vessel in going through the canal . . . would be expected to know the usual current, the usual obstructions, the various things about it that make navigation in that particular place dangerous or not dangerous; he is expected to know how to handle his vessel in that place before he goes into it.”

The other portions of the report excepted to were either findings of fact, or were addressed to alleged immaterial evidence which was not reported, and hence not within the provisions of G. L. c. 221, § 56. The admissibility of evidence that other vessels had passed through the canal safely will be considered later, as it was raised in the trial court. It follows that there was no prejudicial error in the refusal of the trial court to exclude certain portions of the auditor’s report.

3. Exceptions to evidence. We consider only those argued by the defendant, and in the order they appear on its brief.

Extracts from the official “ log ” book of the Cape Cod Canal, showing the time at which the Herman Winter arrived at the Buzzards Bay, Bourne and Sagamore bridges, was admitted subject to the defendant’s exceptions. It appeared that the witness Whipple, the despatcher stationed at Buzzards Bay, made the original entries from which the log was made up, that he personally saw the steamer at the Buzzards Bay Bridge, and that he got reports by telephone from the other bridges. The record was kept under the direction of Captain Colbeth, the superintendent and general manager, in the regular course of duty. As matter of fact, it added nothing to the direct testimony of witnesses and the deck log of the steamer, except as to the time when the Herman Winter reached Bourne Bridge. The evidence was admissible. Donovan v. Boston & Maine Railroad, 158 Mass. 450. Commonwealth v. Dorr, 216 Mass. 314, 319. Bradford v. Boston & Maine Railroad, 225 Mass. 129, 134.

There was no error in permitting the witnesses Whipple (the despatcher) and Vallier (the operator of the draw at Sagamore Bridge) to refresh their recollection from the canal “ log.” It was immaterial who made the memorandum, if it recalled the facts to the memory of the witness. Commonwealth v. Burton, 183 Mass. 461, 470. Allwright v. Skillings, 188 Mass. 538. Mayberry v. Holbrook, 182 Mass. 463.

The hypothetical questions to experts on navigation, familiar with conditions in the canal, are challenged because they assumed that the Herman Winter was going through the canal at an average speed of twelve miles. But there was evidence to that effect, both in the findings of the auditor and the testimony as to the ship’s time in passing known distances between the bridges.

We are unable to say that there was error in the admission of the evidence that other vessels passed through the canal in safety about this time. The contention of the defendant, that, although the steamer was carefully handled, she became unmanageable by reason of canal conditions, raised an issue as to what those conditions were. The judge carefully limited the application of the evidence to that issue, instructing the jury, among other things, “. . . So the evidence with regard to vessels is admitted for the purpose of enabling you to see, if you can, what conditions are likely to exist, whether or not there were conditions particularly with regard to the depth of water which would make the handling of the vessel impossible. For that purpose it is admitted and for that purpose you should consider it. But you should not say that it shows these people were negligent at this time, that that same vessel went through at some other time or that other vessels of like shape and bulk have gone through there safely.”

Finally, there was no error in admitting the testimony of witnesses expert in navigation in the canal, in substance, that they knew of no conditions existing there which would cause a ship like the Herman Winter to become unmanageable. It was a proper subject for opinion evidence, on the issue raised by the defendant; and the qualification of the witnesses as experts was not disputed. Transportation Line v. Hope, 95 U. S. 297. Price v. Hartshorn, 44 N. Y. 94. Parsons v. Manufacturers’ Ins. Co. 16 Gray, 463. Commonwealth v. Snell, 189 Mass. 12, 25.

4. As to the defendant’s requests for rulings:

Those numbered 2, 4, 5, 8, 11, 12 and 16 were given in substance, in the body of the charge. Herrick v. Waitt, 224 Mass. 415. Assuming the correctness as abstract propositions, of those numbered 10, 34, 35, 37, 38, 39 and 41, there was no issue for the jury which called for giving them. The narrow issue for the jury, as the judge stated more than once, was whether those in charge of the vessel used reasonable skill and care in handling it, under the conditions existing when the accident happened. Having fully instructed the jury upon the principles of law applicable, he was not called upon to give requests, such as 24, 27, 29, 30 and 42, which singled out certain portions of the evidence and asked for rulings as to their effect. Ayers v. Ratshesky, 213 Mass. 589. Altavilla v. Old Colony Street Railway, 222 Mass. 322.

The alleged legal duty of the plaintiff to maintain the canal at a depth of twenty-five feet at mean low water was involved in the request numbered 31, and in exceptions to the judge’s charge on that subject. There was evidence, especially from soundings made on August 14, 1918, that within six hundred feet of the Sagamore Bridge were places where the water was less than twenty-five feet at mean low water. The charter (St. 1899, c. 448, § 3) provided that “ Said canal, when constructed, shall have a depth of not less than twenty-five feet at mean low water . . . ; ” and that “ when completed it should be under the jurisdiction of the harbor and land commissioners.” It is not disputed that it had- the prescribed depth when completed. The plaintiff took possession of the canal six days before the accident. The trial judge instructed the jury, “ . . . There was no obligation in law to maintain it [the canal] always exactly at twenty-five feet. It was subject to such circumstances as nature imposes upon it, and the fact, if it was a fact, that at some of the points at some particular time it might happen to be less than twenty-five feet in depth, does not make the Canal Company or the Director General of Railroads in fault. He does not guarantee or he is not held in law to guarantee the mean depth of twenty-five feet at all times and under all circumstances.” The judge’s construction of the charter seems to us correct. But in any event there was no prejudicial error in the refusal to give request numbered 31, nor in the portion of the charge on this subject which was excepted to; in view of the uncontrolled finding of the auditor that “ the Canal at the time of this accident was reasonably safe and convenient for vessels of the type, size and draft of the Herman Winter.”

As to the requests numbered 26 and 43: the only negligence of the plaintiff suggested was the alleged failure of duty to maintain the canal at a depth of twenty-five feet at mean low water. That is disposed of by what we have just said. It is to be noted that the steamer was drawing only fifteen feet; that there were several feet of water under her keel throughout the'channel; and vessels like the Herman Winter were daily using the canal. And it certainly could not be ruled that the plaintiff assumed the risk of this accident.

Finally, as to number 33, the trial judge instructed the jury, substantially as requested, that the plaintiff must prove that those in charge of the vessel were careless at the time of the accident.

The foregoing disposes of all the exceptions on which the defendant apparently relies in its voluminous brief. Without further discussion in detail we deem it sufficient to say that an examination of the entire record discloses no prejudicial error in the conduct of the case.

Exceptions overruled.