:1:90
i REPORTER,
\Tol. 59. . _,
Says Jones on ChatteIfMortgages,(3dEd. § 503:)
"It the debt be in the t6tm 'of. a negotiable' promissory note, the' assignee by -Indorsement takes the fJllOl'tgage as he takes the note, tree tromliny Gil-
which existed In faV'P,l' <ff ,third persons .while It was held by· the mort·' .
And this, in efl'ect,is what. was supposed to have been decided inOarpenter v. Longan, 16>Wall. 271. See Kenicott v. Supervisors, Id., at top of page 469;iand Sawyer v. Prickett, 19 Wall., near boi· tom of page 166; Sweet, v; Stark, 31 Fed. 858. IfO'Oonnell were to ha"te foreclosed his mortgage, the purchaser a;ttlw Would acquire the title which Wright had when he gave the mortgage; otherwise,evet'yindorsee of negotiable paper se· cured by mortgage is at the peril of any intervening equities which may haveat1:ached to pallties while it Was in their hands,-a result utterly destructive of the object of the rule which ties the security to the note, and 'attributes to the former the color and character of the latter. PENNSYLVANIA R. CO. v.CENTRAL R. CO. OF NEW JERSEY.
(District Court, 1.
S.
D. New York.
June 24, 1892.)
NAVIGABLE WATERs-OnSTRI{CTION BvRAIl.ROAD DRAWBRIDGE-SIGNALS.
J;'roprietors of drawbridges,.Qver navigable streams are bound to use reasoDablemeans to avoid accidents, and not to obstruct navigation, including the use of avallabiesignals to avoid misunderstanding and collision, t):lough not expressly required by statute.
2.
A tug with a tow on a hawser in going up the channel of Newark Bay, onapproachiug the defendant's drawbridge, and when at a reasonable therefrom, gave the usual signal of three whistles, shmving her wish to go through the draw. No answer was received, and the whistles were rePeated several times. 'When within 1,500 or 2,000 feet, or nearer, a raUrpad freight train was seen approaching the draw, some two miles distant, the draw was not Qvened. No answering signals were given; . and none were cu.stomarilygiven on that bridge. After the railroad train had passEld, the drawbridge was seen opening,-and a green light set on the draw, showing that fact; The tug had maneuvered for delay as well as she could in the mean time, and when the draw was opened proceeded using all reasoullble skill; but through thedeiay in answering through her signllis and the crosS set of the tide, the tow came. in contact with the pier Ou one side of the draw, and was injured. HelrA that the defendant wllsanswerable for negligence in giving no answering signals, and for an unreasonable preference given to the railroad train, thereby un· reasonably obstructing and embarrassing the navigation of the tug and tow.
SAME-'-PRltFEnENCE TO RAILROAD 'TRAINS.
In Admiralty. Libel by the Pennsylvania Railroad Company against the Central Railroad Company of New Jersey to recover damages for collision of a scow with a bridge abutment. Decree for libelant; Robinson; Bright, Biddle & Ward, for libelant. De Forest & Weeks, for respondent. BROWN, District Judge. On the 15th of November, 1891, at about 5:30 A. M., the scow Senate, with a cargo of about 160 tons of brick, while proceeding up. Newark bay in tow on a hawser from
PENNSYLVANIA ..R. CO. V, QENTRAL R. CO.
191
the steam tug Winnie, .bound for Newark, in going through the westerly passage of the draw of the Central Railroad bridge, came in contact with the chamfered end of the central abutment. The bow of the scow was square on deck, but sloping beneath. In the eontact with the pier, a plank from its side was thrust through the bow of the boat below the water line about a foot inside of the sloping corner beam, which caused a leak, from which she sank soon after passing through the draw. The above libel was filed to recover the damages. The libelants claim that this collision was not through any negligence of the tug, but through the negligence of the defendants in not opening the draw when signaled by the tug, and in compelling her to wait for a freight train, without giving her any answering signal to show their intention, thereby 80 embarrassing her in the handling of her tow, that, through the cross set of the tide, collision. resulted, without any fault on the part of the libelants. Tb,e evidence leaves no doubt that as respects the management of the tug, the signals given, and the trains passing, the accQunt of the libelants is more accurate than that of the respondents. The defendants' evidence with regard to the passing of the trains, well illustrates how little reliance can be placed on the general recollection of .persons in regard to ordinary occurrences under their immediate observation when their memory is not charged with the matter at the time. Several of the witnesses from the bridge testified most positively that no train went past within a couple of hours before the tug and tow went through, and that there was no detention or delay; whereas, it subsequently appeared, by incontrovertible evidence, that at least three trains had passed within an hour, and one of them at about the same time the tug captain stated. The undoubted facts, therefore, are, that the tug, pursuing the usual course to go through the westerly passage of the draw, gave the usual signal of three whistles when about half a mile distant. No answering signal being received, and no evidence appearing that the draw was opening, the tug, after running 400 or 500 feet, gave a second signal, and after that saw a freight train coming from Singer's factory to the westward about two miles off. The tug then stopped and drifted till the train had passed, when a third signal of three whistles was given, and afterwards three more, after which the draw was seen to be turning open; whereupon the tug started up full speed in order to get her tow properly into shape for going into the passage; but in consequence of the waiting and drifting meantime, and of the set of the tide, the starboard corner of the scow struck with a heavy blow the sloping corner of the pier, some two or three feet from the angle, with the result above stated. It was not the practice in the management of that draw to give any answering signals to vessels desiring to go through. In the daytime, vessels in passing are required to wait until they see the draw beginning to open; in the nighttime, a red light is exhibited when the draw is closed, and a green light when it is off; and vessels do not know that the draw is opening until the green light is seen.
192
J'EDBRAL lt1!:POBTER.
vol. 59.
The pr6prietors ,of a. drawbr:ldge over navfgable WateN 91 tlie United· States, are,bo'un"d to l1SEdt in such a·manner as not unnecesearilyi:O obstruct'natigatlon, (Blanchard v. Telegraph Co., 60 N.Y. t510;,The City of Richmond, 43 Fed. 85, 88;) and this duty includes the use of all reasonable methods tending to aYoid accident or col· lision. This principle is not disputed by the counsel 'for the respondents. Their defense and much of their evidence were to the effect that all reasonable facilities were in fact given to this tug; that the draw was open when the vessel was more than half a mile below; that there was no delay, no train, and no stopping of the tug. This defense, on the facts, I am obliged to discredit, as above stated; being satisfied that the libelants' account of the matter is correct. With a' freight train two miles distant, and a tug with a tow on a hawser "cOming up with,the tide not over 1,500 or 2,000 feet away, the refusal to open the draw in order to give a preference to so distant a train, was an unreasonable and unjustifiable obstruction of the tug and tow. Its unreasonableness was increased by the omission to give any signal, which left the tug in uncertainty what to do, or what to expect. The practice of the bridge to give no answering'signals, is one little to be commended, and is liable often to place the bridge in the wrong. The draw is worked by steam; and answering signals; such as are given upon other bridges, could be given without difficulty. True, signals are not made a statutory duty. But the practical necessity of such signals is manifest, particularly where there is across set of the tide; because without 'them it is impossible for the approaching vessel to know with any certainty whether she can safely continue ou towards the draw, or whether she must stop and maneuver for delay. The embarrassment to a tug incumbered with a tow upon a hawser is still greater; and this is so evident, that I have no hesitation in holding that the omission either to open the draw when the tug is at a reasonable distance, or to give prompt notice by some practicable answering signal if the draw cannot then be opened,is negligence and misconduct; because it violates the rule that is obligatory upon all persons charged with duties concerning navigation, to use all reasonable and practicable means of. avoiding collision and the attendant losses of life and property. Edgerton v; Mayor, 27 Fed. 230. The defendants neglected this duty in the present case; that was tbe efficient cause of the accident, and I do not find any lack of reasonable skill and diligence on the part of the tug. Decree for the libelants, with costs, with an order of reference to compute the damages. if not agreed upon. OENTRALR. co. OF NEW JERSEY v.PENNSYLVANIA: R. CO. (Circuit Court of Appeals, Second Circuit. December 5, 1893.) 1. A railroad" company. in' midntaininga drawbridge over navigable waters, must exercise reasonable care, not only Dot to impede the we NAVIGABLE W ATERS-OBBTRUCTION BY RAILROAD DRAWBRIDGE-STGNALS,