351 question properly before the court at the present hearing is whether the piston-rod packing which the defendant now makes is substantially the same as that which he has been enjoined by this court from making. The former packing made by'the defendant had two disks placed at the head of the stuffing-box, one with a concave recess, and the other with a convex projection which fitted into the recess. By this means the packing was capable ,of a rocking or oscillating movement, and so could accommodate itself toa bent piston or to a rod not set parallel with the axis of the steam cylinder. In the piston packing the defendant now makes, he has changed the form of the disks. He has one disk. with So conical projection, and the other disk with a beveled edge which fits over the projection. The result is the same, namely, a rocking or oscillating.' movement, though it is a more imperfect device than the other. Irne form is different, but the things are substantially the same. It is So mere colorable change, and therefore cannot relieve the defendant. The Qlotion for an injunction should be granted, and it is so ordered.
THE FULDA. STEWART
v.
THE FULDA,
etc.
(DiltNct OQu'!'t, 8. D. New Yo'!'k.
May 23, 1887.)
1. 2.
Tugs'accustomed to do business in private slips are chargeable with notice of the customs of tlle occupants, as respects breasting off, and the use of warps across the slip. SAlII:JD--,CASE STATED-NoTICE-OBSTRUCTION.
WARPS ACROSS-CUSTOM.
The steamer F., on arrival at her slip at Jersey City after dark, was sought to be breasted off, as usual, some 25 feet from the wharf, the wind and tide being against her. A warp or ,hawser was thrown across tlle slip, 100 feet from itljlentrance, to aid in the work, as usual, under such difficultIes. A tug having business in the slip, shortly after, on entering at considerable speed, ran against this hawser,anll carrIed away her. pilot-house and 'smoke-stack. Held, t1;lat the steamer, in using a warp after dark, was bound to provide rea· sonable notice of the oDstruction to other vessels having business there, and likely to come there; that the partial lighting up of the slip by the ship's lights, without any other signal or precaution, was. insufficient. Held, alBo, that the tug ws;s chargeable with knowledge of the usages of the slip, and was bound to approach it with more caution than she used; and the damages were divided.
In·Admiralty. Hyland & Zabriskie, for libelant. Ship11lXJ,rt, .;Barlow, Larocque & Ohoate, for claimant. BROWN, J. ' On the fourth of December, 1886, after dark, between 7 and 8 P. M., as the steam-tug D. Bingham was entering the slip of the Bremen line at Jersey City. in order to take a canal-boat loaded with coal from the to and along-side the Fulda, for the purpose of coal..
ing her, the tug ran against a hawser, which was stretched from the starboard quarter of the Fulda, lying 0n the southerly side of the slip, across to a spile about 90 feet distant from the outer end of the pier, on the northerly side of the slip. The collision carried away the tug's pilothouse and smoke-stack, and inflicted considerable damage, for the re" covery of which this libel was filed. The Fulda isa steamer about 450 feet long, and of about 5,000 tons burden. She arrived at the end of her pier at 6 P. M., and proceeded as usual to haul into the slip. When wholly within the slip, an endeavor was made to breast her off; as usual, some 25 feet from the southerly side of the slip, so as to admit coal-boats for the purpose of coaling her on both sides. The whole work of mooring in this manner usually occupies from an hour to an hour and a half, depending upon the wind and tide. At this time the tide was ebb, the wind N. E., and a storm unfavorable· to ,her being breasted off easily. Under approaching, such circumstances, it was usual to throw lines across. the slip to the northerly pier, and to haul by steam-winches upon those lines, as well as upon the mooring spars placed upon the opposite side for the purpose of breasting the vessel off, and of keeping her there. Usually, after the vessel is properly breasted off and fixed by the spars, the hawser is removed; but in rare cases, insmrms, the hawser is left out over night for the purpose of better securing the vessel. The evidence shows that in' "this instance the men did not succeed in breasting the vessel off as much as required, and at about half past 7 gave it up for the night,-about the time the tug came to the slip, as above stated. The claimant's witnesses testify that the men had not yet been discharged for the night; that the ship was brilliantly lighted in all parts, the steerage passengers remaining on board for the night; and that, besides various other lights, there WllS a large electric light forward and another aft, each of which had five burners, amounting to 100-candle power. The libelant's tug was properly sent there by the person whose business it was to bring the canal-boats with coal along-side the ships of the line for coaling, and it was dispatched there on learning of the Fulda's arrival. The tug came up the river from below, and, as she approached the pier, slowed her engines one pier below the Fulda, and, when turning into the slip, she stopped her engines. She had a lookout properly stationed forward, but neither he nor the pilot noticed the hawser. The lookout passed under it, but it caught the pilot-house just below the roof, and carried that away, as well as the smoke-stack behind it. The tug was going with sufficient speed to pass completely beyond the line of the hawser, notwithstanding the resistance of the pilot-house and the .smoke-stack. The libelant alleges negligence in the ship, because no light was hung upon the hawser, nor any other notice or caution against danger provided by the Fulda; and because one of the men who had charge of the hawser at the bitts on the Fulda did not let go the hawser, as he might have done, when he saw the tug approaching only 150 feet distant, nor hail to warn the tug away. The claimants insist that the give
. THE FULDA.
353
damage arose from the tug's own fault in not observing the hawser, which it was said should have been seen in the bright light that shone across the slip, and because there was a want of reasonable care and caution in entering the slip while the Fulda was mooring, as well as for· too great speed. There is no doubt, upon the evidence, that the vessel was well, even brilliantly, lighted, and that the whole slip must have been to a can, siderableextent irradiated by the ship's lights. To what extent, however, this help to seeing an article like a hawser would be neutralized by the blinding effect of such lights on the pilot's :sight, in approaching them on the'water, I am unable to say. The libelant's witnesses testified that such lights make adjacent objects less easily seen, by blinding the eyes of the pHoto It is certain that neither the lookout nor the pilot of the tug had any thought of a hawser being stretchei. across the slip, and were not upon the lookout for any such· obstruction. Those on board the Fulda, with their backs to the lights, could see the hawser distinctly all the way to the opposite slip, though the night was dark. 1. I cannot hold the stretching of a hawser in the night-time across the end of this slip, where tugs were in the habit of coming more or less upon, the company's business, and had the right to come, without any signal light or provision for notice of any kind to warn such tugs of the danger, to be without fault. A reasonable consideration for the safety of other vessels likely to come into the slip upon legitimate business requires that reasonable notice of some kind should be provided, in order to apprisesnch vessels of the danger arising from any unexpected obstruction. The Fulda was chargeable with knowledge that tugs were likely to conie there properly at any moment. As respects such vessels, having business in the slip, and a right to enter it, the slip is analogous to a thoroughfare, as regards the right to notice of any unusual obstruction; and I think the rules applicable to the necessary use of lines across, navigable streams in the handling of vessels should be held equally applicable here, so far as respects reasonable notice and caution to other vessels expected to come there, and liable to be injured. The Swan, 19 Fed. Rep. 455, and cases there cited. The general rule, as respects the requirement of notice or caution against unexpected obstructions, or concealed dangers in slips, or upon highways, stands on the same principle. Heissenbuttel v. Mayor, etc., 30 Fed. Rep. 456. I am not satisfied that the partial lighting up of the slip from the lights upon the Fulda was a sufficient or reasonable provision for the safety of other vessels coming to the slip in the night-time. The ease with which a lantern or some of the recognized signals of danger and of the necessity of caution could be maintained, or some other· provision made, either for dropping the hawser, or for hailing tugs proposing to enter the slip, should make some such precautions obligatory, as held in the cases above referred to. Upon this ground I must hold the Fulda to blame. 2. The proof on the part of the Fulda, however, shows such special . circumstances as should have put the tug in this case upon her guard, v.31F.no.6-23
354
J'EDEB.A.L' 1tEP<mTEB.
and charge her with a lack of the 'caution that, under the circumstances, was obligatory upon her. The slip was a private slip of the claimants, used in their business only; The libelant's tug was accustomed to go there frequently, and must be held chargeable with knowledge of the claimant's custom in mooring their vessels. The proof leaves no doubt that the breasting off of the vessel some 20 or 25 feet from the dock was a constant practice; that it usually took from one to two hours after arrival; and that, when wind and tide were unfavorable, hawsers stretched across the slip were customarily used to assist the work. The tug knew, in this case, that the Fulda had: but just arrived. The position of' the Fulda in her slip confirmed the faot. There were abundant lights visible, aathe tug approached, to show tbis, and to show the further fact that the work of breasting her off was still incomplete. The wind and were to tbe work, and the tug, notwithstanding the denials of her witnesses, must be held chargeable with knowledge of the fact that' the Fulda was engaged in breasting off, and, if not at the moment actually using hawsers,was at least likely to have them stretched out,. as was often. done under such circumstances. The tug had no right to assume, therefore, that the slip was necessarily clear; and she should have proceeded with caution, and with at least some watch, as respects any obstruction that might be across the slip while the Fulda was breastiI).g off., The- tug gave no heed to any of these circumstances; and the fact that the men testify that they saw neither workmen nor lights shows, if that be true, that a proper' lookout was not kept up. The tug ran into the slip at considerable speed, and with no attention to the special usages of that slip, or the circumstances of the occasion; and she must thereforebe'also held in fault; as,was the tug in the case of The Echo, 19 Fed. Rep. 453,455. Both being to blame, the damages and costs are divided. A decree may be entered accordingly.
and othere ,v. OO'U1't,
PHILADELPHIA
Co.
W. D. Pennsyl'Dania.May 21,1887.)
"
The defendant company" having authority under the laws of Pennsylvania tolay an,dmaintain pipes for transportation of natural/l:as across,the Allegl:\eny river; laid an eight-inch main across arid resting on the bed of the river, wholly exposed/so as to interfere with the free and 'safe passage of boats. Held, that the pipe should have beenbl;Lried IlD.derneath the river bed, and as laid it was . a Wrongful obstructiOn to navigation. .' If SHIPS.uw, SJIIi>PING-clNJURY TO VESSEL BY OBSTRUCTION IN RIVER-LIA,BrLITY: . ,:' ,: ." ,. , '
1.
NAVIGA'l'ION..:.-.OllSTRUCTION TO-GAS MAIN.
A steam-boat descending the river through a ripple hard to navigate by rea, , son of low water, crookedness of channel, etc;, groundeq her bow on a small hidden lump; whereupon, the engines being stopped, the cross-current swung the boat atound until her bottom came in contact with and stuck fast on said
OMSLABB f1.PHILADELPHtA 00.
855·
pipe. The river was falling, and, apprehending that the boat would break in two if left on the pipe, the libelants (the owner and .those in charge of the. Mat) essayed to pull her off by warping, i. eO, fastening a line to shore, and attaching· the other end to the boat's capstan, which was worked by steam. Under the strain the pipe parted at a flange put thereon to repair a previous break made by another boat.. There was an esc!tpe of gas, which instantly tilled .the boat, and, igniting, caused personal injuries to libelants, and the burning of the boat. Held, (a) that the pilot was not culpable in not avoiding thelump; (b) that the grounding on the lump was of no·mqment, as the boat would have swung or could have backed off, save for her entanglement with the piP!1; (0) that libelants. were not chargeable With. negligence, either because of failure to communicate with defendant. before undertaking to free the boat, or on account of the method resorted to; «i) and that the defendant's wrongful act was the proximate cause of tlle disaster, and defendant was answerable for the damages sustained..
8.
SAME-CoNTRmUTORY NEGLIGENCE.
The libelants are to be judged by the standard of common prudence and experience; and, acting in an emergency, they are not to be held responsible for a mere mistake ofjudgJ1ient. Having wrongfully placed in the channel of the river a natural gas main, which was exposed to rupture by. steam-boats. running foul of it; defendant cannot be heard to say that the ill consequences experienced by libelants were such as could not have been foreseen. . ,
4.
SAME-PROXIMATE CAnSE.
In Admiralty.
Barton « SonB, for libelants. Johm. Da1zeU and William Scott, for respondents.
ACHESON, D. J. On the afternoon of December 1, 1885, the steam tow-boat Iron City, having taken a raft of timber from the foot of Herr's island, up the Allegheny river, through the ripple at or near the head of the island, known as "Garrison Ripple," to its place of destination, a short distance above, at the trestle-work of the Pittsburgh & Western Railroad Company, on the north or Allegheny shore, turned out from the shore on her return trip. The boat at first proceeded up stream such short distance as in the of the pilot seemed to be sufficient, and then rounded out into the river until her head was pointed down stream. When the boat had about entered Garrison Ripple channel, and while moving,as respects speed, with proper caution, her head grounded on a small lump of rock and gravel under water, which the witness Wentley (who lives in the neighborhood, and is familiar with the locality) describes as about eight or ten feet square, and standing eight or ten above the bed of the river. Immediately the engines were stopped, and the cross-current, striking the larboard side of the boat, swung her round, her head working as if on a pivot, and her stern turning towards the AI· legheny shore,and on further around, until nearly half way round, when the bottom of the boat out towards the stern came in contact with a.nd struck on what proved to be an iron pipe of the diameter of eight inches, belonging to the defendant company, and used by it for the transportationof natural gas. Describing the manner in which the Iron City was caught on the pipe, Joseph Fairbaugh, the watchman on the boat, says: "She tun 'on that lump slowly,thesame as if she'd run on any other bank. The hardest
FEDERAL. REPORTER.
knock was when she struck on the pipe. When she struck the pipe it shook her np pretty hard. There ,vas a sudden stop." At first the persons aboard the boat did not know what it was the stern had caught on; but it was soon discovered. John W. Tompkins testifies that he at once· sounded with an oar, and found the water getting deeper and deeper as he went back towards the stern,until he struck an object which he recognized as a pipe, and that he passed the oar over the pipe, and down on the other side of it, Rnd that he jqdged the water along-side the pipe measured eight or nine inches. Mr. Tompkins is an entirely disinterested witness. His testimony is highly important, Rsshowing the situation of the gas-pipe with respect' to the bed of the river before anything was done to disturb it. Word having been sent to James Omslaer, the ovvner of the boat and one of the libelants, he, together with J. W. Wentley, Charles Vamos, ,assistance of the boat. They reached and Smith Walker, went to her about 7: 30 o'clock that evening, when a careful examination was made. Mr. Wentley testifies that he went all around the boat in a skiff, sounding with an oar. He states she was aground about 20 feet back from the bow; that from there back to the gas-pipe there was plenty of water; that she was caught on the pipe on one side about 50 feet from the stern, and on the other about 30 feet. In sounding with the oar , this witness, when he came to the pipe, felt it, and then raising the oar, passed it over and down on the other side. The boat lay quartering in . the river, her bow up stream, inclining towards the Pittsburgh side and her stern towards the Allegheny side. Up to this time no effort had been made to get the boat off the pipe, except that the pilot had caused a few backward and forward revolutions of the wheel to be made, but without any effect. ,The Iron City was a stern-wheeler, about 120 feet long exclusive of the wheel, had a 22 feet beam, a model hull, with sharp bow, sloping and rounding off, and down a little under the water was flat-bottomed. On this occasion she was running light,-without anycargo,-and was drawing about 34 inches of water. The evidence indicates that the then depth of water in the channel at Garrison ripple was about three and a half feet only, and the river was falling. Mr. OIllslaer, Mr. Wentley, and Mr. Black, the pilot of the boat, all experienced river men, testify that on a falling river there was danger that the hull of the boat, ifleft on the pipe, would break in two. To prevent this apprehended mischief steps were taken, as soon as possible, to get the boat afloat by "warping," the usual method practiced by river men for pulling hoats off when they are fast aground. The method here adopted was this: A line was sent out to the Allegheny shore, and there made fast, and the other end was attached to the boat's capstan, which was worked by the "nigger" or auxiliary engine. The line parted twice, but on the third attempt the head of the boat came off the lump. The nigger engine was then kept at work to pull the stern of the boat off the pipe, when suddenly there was a violent escape from the pipe of natural gas, which inatantly enveloped and filled the boat, and ignited from a light in the
OMSLAER fJ. PHILADELPHIA 00.
357
engine-room, or the fire under the boilers, causing an explosion, result· ing in personal injuries to several of the libelants, and the destruction of the tow-boat, which immediately took fire, and burnt to the water's edge. The explosion occurred about 2:30 A. M. of December 2d. Subsequent investigation disclosed the fact that the gas had escaped from a break at a flange which had been put on the pipe to repair a fracture which the steam-boat Park Painter had made on May 8, 1885. That fracture was repaired by a flallge-union formed by two pieces of cast-iron 14 inches in diameter, and three inches thick, with a lead gasket in the center, and held together by bolts. Under the strain to which the pipe was subjected by the effort to free the Iron City, the bolts holding the two parts of the flange together parted. This flange projected at least three inches beyond the exterior surface of the pipe, thus forming what Mr. Omslaer calls a "knuckle," which he thinks held the Iron City, and prevented her from sliding off the pipe. Certain it is that, when the wreck 'was turned upside down, there was observable, running diagonally across the bottom of the hull, a deep score, and a hole in the line of the score, both apparently made by the same thing. The flange would account for both if the boat passed over it. But, whether or not the boat was held by the flange, without any doubt the rupture which caused tIle fatal mischief occurred there as above stated. This suit was brought by James Omslaer to reCover for the loss of his boat, etc. Afterwards the other libelants filed an intervening libel to recover damages for the personal and other injuries sustained by them respectively . The Philadelphia Company is a corporation of the state of Pennsylvania, and in December, 1885, was engaged in the business of transporting natural gas, by means of pipes from the wells to places of consumption, as fuel ill the city of Pittsburgh and vicinity. The company claims that, under its original charter of incorporation, (Act March 22, 1871, P. L. 1873,. p. 955,) it had the implied right to lay and maintain lines of pipe across the Allegheny river; and also that it was expressly invested with this right by virtue of section 10 of the general act for the incorporation and regulation of natural gas companies, approved May 29, 1885, (P. L. 29.) Although it does not appear from the proofs that the defendant company has accepted the provisions of the latter act, yet, for the purposes of this case, it will be assumed that the company was clothed with the right in question, subject to liability for damages occasioned by the negligent exercise thereof. The libelants contend that the damages sustained by them respectively were occasioned by reason of the negligence of the defendant company in the manner of laying and maintaining its said gas-pipe across the Allegheny river; that it was incumbent on the company to bury its pipe beneath the river bed, but that this was not done; and hence that it was a dangerous and unlawful obstruction to the free navigation of the river, causing the disaster to the Iron City. That it was the duty of the defendant company to lay its pipe under the bed of the river, so as not to interfere with the safe passage of boats, I do not understand to be de-
868
nied. The answer .impliedly concedes both the feasibility and necessity of so doing, for. it alleges that all the defendants' pipes the Allegheny river, including the particular one here in question, were so laid. What, then, was the fact. with respect to the pipe crossing at Garrison ripple? This pipe was laid in the month of April, 1885, when the water was at a high stage. It is not alleged that it was then buried. At first it was held in placfl against the current by iron pickets or spikes, .with hooks on top to ·fit t4e pipe, the spikes being placed on the lower side of the pipe, and, driven down into the bed of the river. But in the summer of 1885 a force of hands was employed by the defendant company to lower and bury the pipe. Albert Hyland, the defendants' superintendent, testifies that on what is called the "Dry Bar," which is towards the Pittsburgh side, the pipe was buried four or five feet deep; that on the "Island Bar," which is towards the Allegheny side, the ditch averaged 28 inches in depth; and that between these bars the whole line was buried under the bed of the river, with the exception of probably 50 feet in the center of the channel,-the main channel. But Gordon Hulings, the defendants' foreman, who followed the men engaged in lowering the pipe, and drew the piCkets, testifies thus: "The pipe not buried there in the channel was not more than one hundred and fifty feet." It is quite certain, from ,the defendants' own evidence, that at no time was the entire line buried. How was it with that portion of the line at the place where the catastrophe to the Iron City occurred? Mr. Hyland, and several of the defendaI\ts' other witnesses, say that it was buried underneath the bed of the river, and was kept so. Doubtless these witnesses honestly think such was the case. But the evidence leads me to the opposite conclusion. Endeavoring to explain the cause of the accident, Mr. Hyland, in the course of his cross-examination, confidently declares that the Iron City "tore our pipe from its bed from the motion of her wheel." But this theory is not supported by any evidence. Indeed, it is conclusively proved that the boat, while swinging around with a motionless wheel, forcibly struck and became fastened on the defendants' pipe. Investigation by sounding, which immediately followed, demonstrated that the pipe was not buried, but lay upon the bed of the river altogether exposed. I cannot doubt that the defendant company was chargeable with negligence in· thus leaving its pipe unburied at the place of this disaster. If, under all circumstances, the company was not bound to exercise its franchises in subordination to the right of vessels to the free navigation of the river, it certainly couM not unnecessarily interfere with that right. But this pipe was an unnecessary obstruction in the way of boats. Moreover, the navigation of Garrison ripple, as will presently appear, is beset with great natural difficulties, and to add to them an artificial obstacle was particularly reprehensible. And, furthermore, the fact that the Park Painter had broken the line of pipe at this point was a warning to which the defendant should have given heed. But the defendant contends that the Iron City was badly navigated, and that the calamity which befell her and the libelants was occasioned
OlISLAEJl tl. PHn..ADELPHIA
co.
359
by the unskillfulness and lack of due care on the part of those in charge of and managing the boat. It is claimed, in the first place, that, by reason of the ignorance of the pilot or his want of skill, the boat was out of the proper channel when she ran aground, and that thus the misfortune which ensued was brought upon her; and, in the second place, that the libelants were negligent and rash in their efforts to pull the boat off the gas-pipe, and in the method they pursued. Let us see whether these allegations are well founded. Elsie P. Black, the pilot of the Iron City, was an experienced river man, and a licensed pilot for many years. He had frequently piloted steam-boats through Garrison ripple, on· up-trips and down-trips, at different stages of water, and had done so several times not long before this disaster. Only three days before he had piloted the Iron City with a raft in tow up through the ripple to the same destination, and then down stream again, after her tow had been left at the trestle-work. He states that on the afternoon of December 1st he pursued the same course as on previous occasions as nearly as he could. . The uncontradicted evidence shows that Garrison ripple, at the 10\\ stage of water which existed on December 1, 1885, is a very difficult place to run,-one of the most difficult in the river. The current is swift, and the channel shallow and very crooked. Moreover, descending boats eneounter a strong cros&-current, setting towards the .head of Herr's island. H. B. Hulings, an Allegheny river pilot, and a witness for the defendant, being asked by the defendant's counsel if a boat, in the circumstances of the Iron (''ity, could not have returned down the channel ofthe river without coming near the place where she got aground, answered: . "That would be according to circumstances. Sometimes a man will go into a place with a steam-boat with a calculation of coming out the same place again, and get considerably out of the channel. I have gone in there'myself, and calculated I would come out where I went in, but drifted considerably, the boat going over the shallow water, -going sideways." Then, in the further course of his examination in chief, we read as follows: .. Question. What. then, is there to prevent a steam-boat, without tow or cargo, starting at the point marked [on map] 'Raft Tied,' from going up, rounding to, and down what you have described as the low-water channel ?Answer. .As I said before, it is according to circumstances. They may drift over. Q. Why should they drift? A. Well, driving them on shoal water,-they squat." And on cross-examination this witness states: "This is about as bad a channel to run as you generally find." Doubtless, the best water is close into the "Dry Bar," but, while recognizing this, Edward J. Hulings, a river captain and pilot, adds: "Sometimes you can get in close, and sometimes not; it is according to the wind," etc. Thomas Cavett, a pilot on the Allegheny river, (a witness for the libelants,) speaking of the place where the defendants' pipe crossed the river, says: "But in coming down we can't cross over where it is deep; can't steer a boatin there; have to flank as the current sets in towards the island, and we have to go down where it is shoal."
360·
FEDERAL -nEPORTEn.
-There is other testimony io the same general effect as that above quoted, aqd none to overcome it. In view, then, of the great difficulty in running down through the head of Garrison ripple at the then stage of water, and' giving proper consideration to the evidence of the expert witnesses, I do not· think that any unskillfulness or carelessness can justly be imputed to the pilot of the Iron City because he did not avoid the small concealed lump upon which the boat grounded, or failed to keep to the Pittsburgh or "Dry Bar" side of the same. Moreover, in the judgment of witnesses, the grounding of thfl Iron City at the bow was not a matter of any moment. They state that she could hil.ve backed off readily from the lump if her stern had been free. Indeed,some of them say that, without using her wheel, she would have swung.off if ber course had not been arrested by the pipe. I am satisfied thatthe serious trouble arose from her having caught on the defendants'pipe. Save for this entanglement, a resort to "warping" would not have been necessary. Mr. Black, the pilot, testifies: "If I had been 20 feet either way, [i. e., on either side of where the bow grounded,] I'd have gone through; and if her stern hadn't caught on the pipe I would have gone through anyway, as there was plenty of water for her." There is much evidence corroborative of this statement. That there was sufficient water on the Allegheny side of the lump to float the boat is indisputably established by the fact of her swinging around until she struck the pipe. Then the measurements made that evening; as testified to by several witnesses, showed that there was no lack of water. This is further confirmed by measurements made the next morning by Edward J. Hulings, a disinterested person. This witness is a steam-boat captain and pilot, familiar with Garrison ripple, who assisted inlaying the defendants' pipe originally, and helped "to fish the pipe out" after it had been broken by the Park Painter, and when it was repaired by the flange union. His testimony, (herefore, is entitled to great weight. He visited the wreck of the Iron City on the morning of December 2, 1885, and made an examination while it still lay on the defendants' pipe. He says: "1 measured the water on the pipe that morning. It measured 31 inches. I made an examination at the side of the pipe, and it measured from ,40 to 41 inches. I saw the pipe lying in the bottom of the river that morning. It looked to me as if it was lying in the bottom of the river there in the channel." The hull was 22 feet wide, and covered that much of the pipe. Mr. Huling's measurements were towards the north or Allegheny shore, and extended out from the wreck 10 or 12 feet·. He states that he did not measure on the other or Pittsburgh side of the wreck, because the current was too swift there for him to manage his skiff. For that reason he could not find the flange union, but he knew it was near the wreck. It was located by Harry M. Jones, a diver, who on the afternoon of December 2d went down into the river, and ascertained that the break was at the flange union. Mr. Jones states it was on the Pittsburgh side of the wreck, and about 10 feet from it. Mr. Hylands states that, in endeavoring to get off the pipe, the Iron City pulled it up stream about 10 feet.
01\lBLAER V. PHILADELPHIA CO.
361
This may be so, but the fact does not weaken the effect of as to the depth of water derived from Mr. RUling's measurements. Upon this branch of the case, then, my conclusion from the proofs is that while the Iron City, at the time the disaster overtook her, may not have been in the very deepest part of the channel, she yet was in navigable water, and where she had a perfect right to be. From no portion of the river then navigable by the boat could the defendant company lawfully exclude her. We now come to the consideration of the question whether the libelants were in fault in attempting to pull the Iron City off the defendants' natural gas-pipe, or in the manner in which they proceeded to do so. Was it their duty first to communicate with the defendant company to the end that the gas might have been shut off from the pipe? Were they culpable in the method to which they resorted to free the boat? If they were in fault at all, it must have been in these particulars, or one of them. Mr. Omslaer testifies: "When I found the boat on the pipe, I used my best judgment to get her off." In passing on his conduct, we must regard the then existing circumstances. It is safe to affirm that only a man of extraordinary caution would have thought of notifying the defendant company before resorting to measures to extricate the boat. An emergency was upon the libelants calling for swift action. The steam-boat, as they believerl, was in a position of peril by reason of a falling river. It was, then, their duty to take prompt steps for her deliverance. Now, while the pipe was not buried, it yet rested upon the bed of the river. The Iron City was flat-bottomed,and she was light, having neither tow nor cargo. Was it not a reasonable supposition that the boat would slide off the pipe if sufficient force were applied? The libelants were unconscious of their proximity to the flange union, and, indeed, knew not of its existence. "Warping," as we have seen, is the usual method of freeing a boat when hard aground. What more natural than a recourse to that expedient? Mr. Omslaer says he did not "dream" of danger; that the parting of the pipe never occurred to him. We can well believe him. None of the officers or crew of the boat, or those employed to assist them, (in all eight persons,) had the slightest apprehension. Several of them were old river men, of large experience. The exercise of ordinary and reasonable caution and care was all that was incumbent on them. The libelants are to be judged by the standard of common prudence and experience. For a mere mistake of judgment they are not to be held responsible. Pennsylvania R. 'Co. v. Werner, 89 Pa. St. 59. Upon the whole, it seems to me that the libelants acted as other men of ordinary judgment would have done under similar circum-' stances. I do not see wherein they are blamable. . The libelants, then, being free from any fault, it is no ans'""l?r to their demands for damages to say that they themselves contributed to the disaster by pulling the pipe apart. Shear. & R. Neg. § 28; Pittsburgh City v. Grier, 22 Pa. St. 54. Noris the proposition that the defendant's negligence was not sufficiently proximate to sustain this suit ld.; Milwaulcee, etc·· R. Co. v. Kellogg, 94 U.S. 469, 474. Having'
869
FEDERAL REPORTER.
wrongfully placed in the channel of the river a natural gas main, which was exposed to rupture by steam-boats running foul of it, the defendant company cannot be to say that the ill consequences experienced by the Iron City were such as could not have been foreseen. The destruction of a steam-boat in the predicament of the Iron City, and the injury of those aboard of her, would be the natural and probable result of the escape from the broken pipe of a fluid so volatile and inflammable as natural gas. To the suggestion that some of the libelants were mere volunteers or ,at the place of danger, it need only be replied thut.the persons referred. to were present lending,8Ssistance to the Iron City in her distress, the request, exprees or implied, of Mr. Omslaer, and are to be regarded as having beel). in the boat's service on this occasion. The only remaining matter illl .to determine the damages of the libelants, respectively. And here.r must content myself with merely announcingresults. In respect tQ the personal injuries, it would have been more satisfactory to me'had the proofs been somewhat fuller. ·It is always a.matter of difficulty to fix a just compensation for such inHere. I have exercised my best judgment upon the evidence be{ore me. I mllrY add that, according to the testimony of the surgeons, the injuries sqstained by Charles Vomos and Smith Walker were very seriouB, 81;).d proQ8ply will leave evil effects of a permanent nature. The .court. finds the damages of the libelants, respectively, to be as follows, viz.: OfJames Omslaer, $6,600, with interest from December 2, 1885j ofCh/U'les.¥omos, $4,500; of William Galbraith, $1,000j Smith Walker, .WrJ. Wentley, $400; Elsie P. Black, $125; of Joseph Fairbaugh·. $1,0; .and Ubrey, $17. Let a be entered against the Philade1phia"Company in accordance with ,the.. foregoing opinion, and findings oithe oourt, with costs of suit.
THE GoVERNOR · I
NEWELL.'
(DiBWct Ootf,rt, D. Oregon. July 7, 1887.) LmEL P.OR
W AGES....,.COUJ.ITTJIlR-CLAlH POR DAMAGE&. The balance 9fwages decreed on the admission in the pleadings, and the counter-claim for dama&es resulting from an injury to the boat while in libel.ant's charge, ,bY-a .COlliSIOD with the. steamer Oregon, found not proven. the Oour-.)
(Svllalnu
Ih AdlUirsMr . Edwarq. ;1(., l)eady,for libelant. Srntithtfor .claimant.
DEADY,·J. .The libelant, a duly.Ucensed pilot, brings thi8 snit against ::Newell, a stern-wheel steam-boat plying on the lower the