Bell Telephone Co. v. Dravo Corp.

Opinion by

Mr. Chief Justice Drew,

A submarine cable running under the Ohio River and belonging to The Bell Telephone Company of Pennsylvania, plaintiff, failed, making necessary extensive repairs costing $4,971.23. Plaintiff brought this suit in trespass against Dravo Corporation, defendant, alleging that the failure had been caused by one of its tow boats striking the cable. The jury returned a verdict for plaintiff for the total cost of the repairs and from a judgment on the verdict, defendant has appealed, assigning as error the refusal to grant a judgment n.o.v.

In 1922, plaintiff was granted a permit by the District United States Engineers to lay a submarine cable in a trench three feet beneath the bed of the Ohio River between Coraopolis and Hayesville. The cable was installed in compliance with that permit and was in continuous operation thereafter without disruption until the afternoon of June 9, 1948. When the failure occurred on that date, plaintiff immediately began raising the cable to determine the exact place of failure and its cause. At a point 66 feet from the Coraopolis shoreline a sharp, indentation was found in the cable. The trouble, spot was found 77 feet further out at a splice in the cable. At the time the stoppage occurred the towboat “Freedom”, owned by defendant, with four barges attached, was maneuvering close to shore in the vicinity of the cable crossing. It is plaintiff’s theory, and the jury so found, that defendant’s boat struck the cable at the place where the indentation appeared causing a break at the splice which admittedly was the weakest point.

Plaintiff produced the following evidence which tends to support that conclusion: The indentation in the cable 66 feet from the Coraopolis shore was obviously caused by the exercise of a strong force on the cable. The steel protective covering on the cable was bright and shiny at that point, whereas the rest of the cable was dull and rusted, indicating that the mark was of recent origin. At the time of the break in telephone service, defendant’s boat was operating 50 to 75 feet from shore as it rearranged its tow after leaving a barge at a nearby dock. Two witnesses testified that they heard a rumbling or scraping noise when the boat was in that area and that the water to the stern of the boat was muddier than usual. There was further testimony that a small seaplane base nearby was broken loose from its moorings and a rowboat overturned.

The towboat was equipped with a kort nozzle which is a tube or casing that houses the propeller and is so designed to give the boat greater thrust. Plaintiff produced an expert witness who stated that if the cable were exposed on the river bed for a distance of at least ten feet and the kort nozzle passed within a foot and a half of the cable, it would be capable of lifting the cable into a position where it could be struck by the bottom of the boat. Plaintiff also produced evidence that the boat had a dráft of seven feet, nine inches, and that the water fifty feet from’ shore- was only seven feet deep. "Air of these facts would tend to prove that defendant’s boat struck the cabla

It was not, however, sufficient for plaintiff to show only that defendant struck the cable. Admittedly the Ohio River is a navigable stream and the rule is well established that ships have the paramount right to use navigable waters free from obstruction: Western Union Tel. Co. v. Inman & I. Steamship Co., 59 Fed. 365; United States v. Henry Steers, Inc., 8 F. Supp. 363. The burden was on plaintiff to show that the cable was maintained so that it would not constitute an obstruction to navigation: Western Union Tel. Co. v. Inman & I. Steamship Co., supra. Therefore, it was incumbent upon plaintiff to show that the cable was maintained in its original position or at least in a position where it would not obstruct navigation. The only evidence offered by plaintiff to meet that burden was the testimony of its expert that a boat going back and forth over the cable could have the effect of digging a trench and exposing it. But that statement was merely a broad generality and in regard to these facts he stated his opinion in this manner: “I believe this operation of this boat and other boats in that same location had probably either exposed the cable or brought it very close to the surface so it could be lifted by a boat moving forward over the cable.” (Italics added.) The only reasonable inference from that evidence is that it was the action of many boats that caused the cable to be exposed and not just the maneuvers of defendant’s boat on this particular day. That being true, then the accident did not occur because of any negligence on the part of defendant but because of plaintiff’s failure to niaintain its cable in a proper manner. Plaintiff should have known that over a period of years boats passing over the cable might uncover it and cause just such an accident as occurred. Having failed to employ the necessary maintenance to prevent the cable, from being struck, they cannot complain that the foreseeable did in fact happen.

Nor can defendant be convicted of negligence because it was maneuvering closer to shore than was usual in what was relatively shallow water. Substantially the same facts prevailed in the Western Union Tel. Co. case, supra, where a ship struck plaintiff’s cable while maneuvering through a mud bank. The U. S. Court of Appeals for the Second Circuit held that as long as a ship is proceeding under its own power it is navigating and the cable must be maintained so that it will not interfere with such navigation. That same principle is applicable here. Defendant’s boat was navigating the river in a way it had a right to do. It was justified in assuming that the cable would be maintained so that it would not obstruct navigation and. hence could not be struck by its boat.

Plaintiff failed to prove that defendant was guilty of any negligence. On the contrary, the record conclusively proves that the accident could not have happened had plaintiff properly maintained the cable. Under these circumstances plaintiff cannot recover for the damages to the cable.

Judgment reversed and here entered for defendant.