author: MOORMAN, Circuit Judge.

text:
    PIONEER COAL CO. v. TAYLOR & CRATE.
    (Circuit Court of Appeals, Sixth Circuit.
    May 15, 1925.)
    No. 4225.
    1. Injunction @=35(1) — One in possession of land without title may sue to enjoin trespass.
    In Kentucky, one in possession of land, though not having title, may sue to enjoin trespass.
    2. Adverse possession @= 13 — Rule for acquiring title by adverse possession stated.
    In Kentucky, to acquire title by adverse possession, entry and possession must be so open And adverse as to put real owner on notice of claim, and possession must continue uninterruptedly for 15 years; but it is not necessary that entry under color of title, describing lands by metes and bounds, extend to all parts of land, or that all parts be actually used.
    3. Adverse possession @=I6(I) — Entry and possession held sufficient to. give title.
    Entry on land by person who claimed undivided one-half interest therein, erection and maintenance of fence thereon, cultivation of garden, and using inclosure for stock in winter for 15 years, held sufficient to give .title by adverse possession to land actually or by operation of law occupied.
    4. Adverse possession @=44 — Expansion of claim to include adjacent tracts under subsequent deeds held not to cause cessation of limitation running in favor of original boundaries.
    Where land was entered by plaintiff’s predecessors, and possession continued for over 15 years, under deed describing land by metes and bounds, expansion of plaintiff’s claim under subsequent deeds to adjacent tracts did not cause cessation of limitation running in favor of original boundaries.
    Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.
    Suit by Taylor & Crate against the Pio-' neer Coal Company. Decree for plaintiffs, and defendant appeals.
    Affirmed.
    Cleon K. Calvert and Martin T. Kelly, both of Pineville, Ky. (James D. Black and H. H. Owens, both of Barbourville, Ky., and James H. Jeffries, of Pineville, Ky., on the brief), for appellant.
    Wm. B. Dixon, of Louisville, Ky., and Edward R. Bosley, of Buffalo, N. Y. (William Low, of Pineville, Ky., on the brief), for appellees.
    Before DENISON and MOORMAN, Circuit Judges, and WESTENHAVER, District Judge.
   MOORMAN, Circuit Judge.

The subject of this litigation is a tract of about 77 acres of land included in a larger body of 1,400 acres, of which appellee claims possession and ownership. It is also embraced in a tract of 93.4 acres claimed by appellant. The suit was commenced by bill in equity to enjoin appellant from trespassing on the land described therein and to quiet appel-lee’s title to it. The answer and counterclaim asserted appellant’s ownership of the 93.4-aere tract, and prayed that its title thereto be quieted.

The lower court found that appellee had been in the actual, continuous, exclusive, and adverse possession of the 1,400 acres for many years prior to any entry thereon by appellant, that appellant had never owned or had possession of any of the land claimed by it, dismissed its counterclaim, and perpetually enjoined and restrained it from entering upon the land in dispute, or committing any trespass thereon of any Mnd whatsoever.

This decree was based on the conclusions, as set out in the opinion, that the prior possession of appellee entitled it to recover in this action, that it had shown title under section 251 of the Constitution of Kentucky, by proving that it had held the land adversely for 5 years prior to the entry of appellant, and that it was justified in claiming title under an adverse possession for 15 years.

The first of these conclusions is attacked on the ground that the suit was to quiet title (Combs v. Turner, 193 Ky. 636, 237 S. W. 37), and appellee was required to show that it had both legal title and possession at the time the suit was filed. Rowe v. Hill [6th C. C. A.] 215 F. 518, 132 C. C. A. 30. It is the rule in Kentucky that one in possession of land, though not having title, may maintain an action to enjoin trespass. Carson v. Turk, 146 Ky. 733, 143 S. W. 393, 42 L. R. A. (N. S.) 384. Stephens v. Stephens, 165 Ky. 353, 176 S. W. 1137. The lower court evidently had this rule in mind in holding that the prior possession of appellee entitled it to recoyer. In view, however, of the character of the action as defined in Combs v. Turner, and the other grounds of the judgment as set out, it is not necessary to consider either rule, except to the extent that the first mentioned relates to the evidence upon which appellee relied as establishing its right to a judgment quieting title.

That it had no valid paper title is admitted. .Its claim, if upheld, must rest on an adverse possession' of 5 years investing it with title, as it insists, under section 251 of the Constitution of Kentucky, or ■ on the ground of adverse possession for the statutory period, of 15 years. The first of these contentions was sustained by the lower court. There is no precedent to be found in the decisions of the state courts, sustaining or denying that view. We prefer, therefore, to pass the question and proceed to a consideration of the second ground.

The proof is clear as to the character, extent, and duration of appellee’s claim, whatever may be its legal attributes. The immediate vendor of appellee was the partnership of Taylor & Crate. Their respective executors conveyed the land to appellee with several differently described tracts constituting a body of about 1,400 acres by deed of September 17, 1904. The vendors of the partnership were the Jones Lumber Company and Berry Howard. The lumber company’s deed of December 1, 1893, purported to convey 15 tracts and an undivided half interest in 26 others, among which was the tract in question described by courses and distances. Berry Howard, by deed of February 12,1901, conveyed his claim of an undivided half interest to 7 tracts of land, one of which described by courses and distances the land in controversy. The Jones Lumber Company’s claim was partially acquired from James Slusher by deed of June 14, 1889, whose claim was derived from a patent of 700 acres issued to John H. Farmer, July 5, 1846.

The claims of the Jones Lumber Company and Berry Howard to the remainder of the land were based on a deed from Preston Hendrickson of January 7,1893, who claimed through mesne conveyances from a patent of 600 acres issued to John H. Farmer, July 5, 1846, or a patent of 7,000 acres issued to James Farmer, August 8, 1851, both of which covered the land. These patents were junior to and included in a patent for 50,-000 acres issued to Abraham Morehouse on February 20, 1799, and, under an act of the General Assembly of Kentucky of 1835, were void. The deed of December 1, 1893, from the Jones Lumber Company to Taylor & Crate included, not only the lands that it claimed under the Farmer patents,, but als& other lands to -which it had acquired claim of title prior to the date of the conveyance. Appellant claims under an execution sale against Preston Hendrickson. It is questionable whether the 77-aere tract is included within the boundary sold under that execution ; certainly appellant acquired no title from the sale, because Hendrickson had none, his claim being based on void patents. But that point is immaterial, in view of appel-lee’s assumption of the burden of showing title in itself; the main question in its two important phases being: Was there an adverse entry on the land by appellee and thereafter an uninterrupted and adverse holding of it under claim of right for 15 years; and, if so, what was the extent of the possession thus acquired and held?

In the absence of a statutory definition of the acts that will summon into operation the statute of limitations against the real owner, these inquiries are to be determined on an application of the principle that the entry and possession must be so open and adverse as to put the real owner on notice of the claim. The possession must continue uninterruptedly for 15 years, but it is not essential that the entry be upon all parts of the land, or that all parts of it be actually used, for, generally speaking, if an entry is made upon unoccupied land under a deed containing metes and bounds and purporting to convey the land described, the possession by construction of law extends to the whole tract within the boundaries described. Hopson v. Cunningham, 161 Ky. 160, 170 S. W. 522; Lipps v. Turner, 164 Ky. 626, 176 S. W. 42. If the deed be void, it is none the less evidence of the extent of the claim. It has been held that the ranging of cattle or hogs on unimproved land, the conducting of a sugar camp at intermittent periods, the occasionally cutting of timber, or the committing of other intermittent acts of trespass, such as the taking of coal or the planting of two or three crops in a period of 20 years, are not in themselves sufficient to establish adverse possession. Smith v. Chapman, 160 Ky. 400, 169 S. W. 834; Davis & Co. v. Sizemore, 182 Ky. 680, 207 S. W. 16. Many of the authorities cited in these decisions relate more directly to the continuity of the possession than to the adverseness of the entry and the claim.

Appellee, through its tenant, entered in 1907 upon the land embraced in its deed of September 17, 1904, at the forks of Wolf Pen branch,- and thereafter, claiming ownership of all the boundaries,' continuously used and occupied the small area cleared until March, 1923. Other parts of the different tracts included in its deed were occupied, after the entry referred to, and some acreage cleared and used until the date of the institution of this suit. None of these entries was on the tract in controversy, though they were on other tracts embraced in the deed under which appellee claimed it. But Berry Howard, claiming jointly to own it and acting for himself and the partnership of Taylor & Crate, through A. J. Bailey, had entered upon it near the public road in 1894. The entry was made when Taylor & Crate were claiming an undivided half interest in it and o"ther lands under their deed of December 1, 1893,' which described it by courses and distances. Bailey cleared a small part of the land in 1894, placed a fence on three sides of it, using a cliff as a barrier to complete the inclosure on the fourth, fenced an adjoining spring, and used the land for a garden, except when occasionally permitting it to rest in order to increase its fertility. In the winter the inelosure was regularly used for stock, the cliff affording a shelter for the stock. There was no break in the continuity of this possession. It was maintained.under Taylor & Crate after they had acquired the claim of Berry Howard and by appellee after it succeeded to the rights of the partnership. When E. V. Howard became the agent of appellee in 1909 authority was given Bailey to continue the use of the land as theretofore, which was done. The maintenance of the fence and the use and cultivation of the land, as indicated, presented unmistakable evidence of a claim of right so to use and occupy it. This was an adverse holding of more than 15 years, and was sufficient to invest appellee with title to such of the land as was thus actually or by operation of law occupied.

This brings us to the question of the extent of the possession. Elaborate arguments have been made supporting and opposing the proposition that it did not include adjacent and separately described tracts embraced in appellee’s deed of 1904. Appellant’s contention on this point proceeds on the theory that the entry and possession effected through A. J. Bailey were not adverse, that others shown in the evidence were similarly ineffectual, and in any event they could not be held to include adjacent tracts. Having determined the first of these questions against appellant, it is unnecessary to decide whether the other entries were adverse, or what was the legal effect of any entry or holding in respect to adjacent tracts; for, as has been pointed out, in December, 1893, appellee’s predecessors acquired, among other interests, color of title to an undivided half interest in the tract involved in this suit under a deed describing it by courses and distances, and in 1901 acquired color of title to the remaining half interest with similar description. The land was entered under claim- of right by appel-lee’s predecessors and their co-claimant in 1894. This possession continued until the institution of this action, and for more than 15 years before appellant attempted to make an entry under its claim. Whether the deed of September 17, 1904, did or did not separately describe the land, it was included within the boundaries therein described, and the expansion of appellee’s claim by virtue of its deed beyond the lines of the tract in controversy, but to include it with others claimed by its immediate vendors, did not effect a cessation of the limitation running in favor of the original tract on which the Bailey entry was made, as it is separately described in the deeds of December 1, 1893, and February 12, 1901.

The judgment is affirmed.


source: Caselaw Access Project

author: WADDILL, Circuit Judge.

license: Public Domain

text:
    MARINE INS. CO., Limited, et al. v. McLANAHAN et al.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2312.
    1. Insurance @=468 — Liability of underwriters held not limited to amount required to be paid by insured ship in limited liability proceeding.
    Liability of underwriters of steamer which, while towing a barge owned by its owner, collided with and injured another vessel, the C., and at same time sank its own tow, held not' limited to the amounts which the insured ship was required to pay in limitation of liability proceeding filed by it on being libeled by the C.; the running down clause of the policies containing a sister ship provision, and the amount of the policies and of insured’s loss within the policies exceeding the amount fixed in the limited liability proceeding.
    2. Insurance @=606(3) — Sister ship provision of policy held to give ship sunk or its underwriters no claim against underwriters of colliding ship.
    Sister ship provision of running down clause in policy on ship, which collided with and sunk barge owned by same party, held', not to give the underwriters of the barge or its owner, as such, any claim against the underwriters of the ship.
    3. Insurance @=606(3)— No right of subrogation in underwriters of ship sunk by ship of common owner.
    The barge sunk having no cause of action against the ship sinking it, because being owned by the same party, the underwriter of the barge, paying loss thereon, has no right of sub-rogation; it standing only in the place of insured.
    4. insurance @=574(5) — Insurers of barge sunk by ship of common owner held, through participation of counsel, to have been parties to arbitration under sister ship clause in ship’s policies.
    Underwriters of barge, which was sunk in collision by steamer belonging to. same party, held, by participation of their counsel to have been parties to arbitration under provision therefor in sister ship clause of policies on the ship, and so bound by arbitrator’s award.
    Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge.
    Suit hy J. Craig MeLanahan, ancillary receiver of the West India Sugar Corporation, and the Equitable Trust Company, trustee, against the Marine Insurance Company, Limited, and others. Decree'for complainants, and defendants appeal.
    Affirmed.
    See, also, 283 F. 240.
    John A. McManus, of New York City (Lord & Whip, of Baltimore, Md., and Duncan & Mount and O. D. Duncan, all of New York City, on the brief), for appellants.
    J. Craig McLanahan, of Baltimore, Md. (France, McLanahan & Rouzer, of Baltimore, Md., on the brief), for appellees.
    Before WOODS, WADDILL, and ROSE, Circuit Judges.
   WADDILL, Circuit Judge.

This is an equity cause, instituted by appellees against the appellants in the United States District Court for the District of Maryland, involving the right to certain moneys now in the hands of the appellee the Equitable Trust Company, as trustee, arising from funds paid by the insurance underwriters upon the steamship Augusta by reason of the sinking of the barge Detroit. A brief summary of the facts in the case is necessary to a correct understanding of the issues:

The West India Sugar Corporation, of which appellee J. Craig MeLanahan is ancillary receiver, duly incorporated under the laws of the state of Virginia, was engaged in the business of transporting molasses and other goods and merchandise between Cuba and the United States. It owned the steamship Augusta and the barge Detroit, the latter being without motive power of its own. On or about the 27th of April, 1919, while the Augusta was towing the Detroit, laden with sugar, up the Mississippi bound for New Orleans, she came into collision with the vessel Capitaine de Beauchamp, seriously injuring the latter, and the Augusta, in the endeavor to extricate herself from the Beau-champ, ran into and struck the barge Detroit, sinking the same immediately, and which, with its cargo, became a total loss.

'fhe Augusta was libeled by the Capitaine de Beauchamp in the United States District Court for the Eastern District of Louisiana, and her owners filed limitation of liability proceedings. The Augusta was held solely at fault for bringing about the collision, and limitation of liability was allowed, the ship’s value ascertained, and the amount paid into court. At the time of .the collision both the Augusta and the Detroit were insured, and the owners of the barge received from its insurers the sum of $25,932 ón account of the loss of the barge. The policies of insurance upon the Augusta and Detroit each contained, in addition to the general collision and “running down clause,” the provision in eases of common ownership of vessels known as the “sister ship clause,” an extract from which is as follows:

“ * * * And it is further agreed that the principles involved in this clause shall apply to the case where both vessels are the property, in part or in whole, of the same owners or charterers, all questions of responsibility and amount of liability as between the two ships being left to the decision of a single arbitrator, if the parties can agree upon a single arbitrator, or failing such agreement, to the decision of arbitrators, one to be appointed by the managing owners or charterers of both vessels, and one to be appointed by the majority (in amount) of underwriters interested in each vessel; the two arbitrators chosen to choose a third arbitrator before entering upon the reference, and the decision of such single, or of any two of such three arbitrators appointed as above to be final and binding.”

Disagreements having arisen between the parties in respect to the amount payable under said policies, notice was duly given, pursuant to this clause, to the underwriters of the Augusta, that loss was. claimed by the owners of the Detroit under said clause in the policies on account of the barge’s loss, in addition to the claims under the general collision and particular average clauses. Thereupon, by consent, Hon. Harrington Putnam was agreed upon to arbitrate the differences between the parties, and to make proper award thereon, his finding to be final and binding. The arbitrator’s award was in effect as follows: That the liability of the Augusta’s underwriters to the owners thereof under the clause set forth in the arbitration agreement was not limited to the amount which the Augusta’s owners surrendered in the proceeding to limit that ship’s liability, and that the insurers of the Augusta were not liable for any sum whatever for the Detroit or its cargo, or to the insurers of such cargo, other than as covered by the sister ship clause of the Augusta’s policies.

Notwithstanding this award was adverse to the appellants, they at once threatened to institute leg’al proceedings by attachment or otherwise, as a result of which this suit was instituted to enjoin such action on their part. The appellants thereupon appeared and filed their answers and counterclaims, setting forth their defenses, and insisting that they were entitled to have and receive from complainants the specific sums paid by them as underwriters of the barge Detroit, viz. $25,-932, and for which the appellants, underwriters of the Augusta, received credit in settling their liabilities arising from the loss of the Detroit, and that by subrogation the underwriters of the Detroit were entitled to maintain their right of recovery for the amount so paid. The District Court decided the questions thus raised ’adversely to the appellants, and in effect adopted the arbitrator’s award aforesaid, and dismissed the counterclaim. From this action the appeal in this case was taken.

The awards of the arbitrator are most important in this case, as the same w.ere made pursuant to the provisions of the policies in question, by one chosen by consent of parties, and whose findings were final between them. Two reports and awards were made; the first dated June 16, 1923, and the second November 28, 1923. In the first, the arbitrator recited that the same turned upon the construction of the “running down” clause in marine insurance policies in connection with the provisions for vessels of common ownership, sometimes called the “sister ship” clause, and said:

“The cases arising under this clause have been infrequent. Its plain purpose was to treat common ownership as no bar to indemnity, so as to give the insured protection for his separate ships, as if there had been no common control. Although the damage and losses of these two vessels run down in the Mississippi, for purposes of limitation of liability, was a single casualty (The Creadon, 5 Aspinall [N. S.] 585), yet this does not exclude the ‘sister ship’ principle. This is an underwriter’s undertaking to intervene between vessels of the same owner, and, by means of an arbitration, apply the indemnity principles applicable to separately owned ships. Hence, I reach the conclusion that the underwriter’s payments in the limitation proceedings did not exhaust their liability under this ‘sister ship’ clause, which by its terms is limited to the policy valuation, or more accurately by the extent that this valuation had been covered by the policies.”

In the second award, dated November 28, 1923, the arbitrator having found that the Detroit’s owners had recovered from the barge’s underwriters $25,932, and that the underwriters of the Augusta had paid on account of collision damages in the limited liability proceedings $98,241.43, and in addition were liable for $74,068, which with the $25,932 covered the full amount of the underwriters’ liability, proceeded to ascertain whether anything further was due from the Augusta’s underwriters on account of the loss of the Detroit’s cargo, or to the cargo’s underwriters, and concluded that no liability existed in favor of either. The following extract from the opinion and award of Judge Putnam, the arbitrator, will greatly tend to elucidate the entire transaction, and make clear the reasons for his rulings, and the principles controlling in the ascertainment of the rights of the parties to the litigation:

“It remains to determine what, if anything, more is due from such underwriters for loss of the cargo on the Detroit, and also for the loss of that vessel. This cargo was a collision loss. However, to recover here, that loss must be brought within the Augusta’s insurance policies. The sister ship provision, viewing it from its inception, was not devised to supply any new ground for cargo recovery. Cargo owned by the shipowner is adequately protected by straight cargo insurance. There is no purpose, therefore, to cover it again under such a running down clause. Without express words, it could not be held that the principles of this clause should be extended to risks of the shipowner’s cargo,, whether in the hull insured, or carried in another vessel; also the questions to be left to the arbitrator are declared to be those ‘between the two ships,’ which wording excludes such cargo claim. Regardless of its ownership, and of the exoneration by the Harter Act, this cargo cannot claim against the Detroit, since that barge was entirely blameless for its loss. The insurers who have paid on the Detroit’s cargo then stand in place of the common owner, and can gain nothing by subrogation. Globe & Rutgers Ins. Co. v. Hines (C. C. A.) 273 F. 774. Hence such cargo claim does not enter into this settlement.
“These Augusta insurers undertook more than the collision liabilities of that vessel. They agreed to indemnify against losses even by its collisions with the assured’s other vessels. Here the Augusta was solely to blame. The Augusta’s bad steering, as a single act of negligence, first put her into contact with the Capitaine de Beauchamp; then, by the same influence of helm and adverse current, the Augusta came into her own tow, so that it must be held that this original collision caused the Detroit’s loss. Fenwick & Co. v. Merchants Marine Insurance Co., Limited, [1915] L. R. 3 K. B. 290. Hence, the Augusta’s underwriters cannot here be held beyond what remains after the underwriters’ payments to reimburse the Augusta’s owner for the amounts surrendered in proceedings' to limit liability, which residue of the policy liability (even as depleted by legal expenses incurred by consent of insurers) appears adequate for the awards now to be made.
“What is the standing of the insurers who have paid this $25,932 for the Detroit’s loss? Prom the abandonment and payment these insurers of the Detroit here seek a proportionate recovery. Their payment put them in the shoes of the insured as to remedies over, but it is the insured, as owner of the vessel abandoned (the sole subject-matter of their policies), not as owner of another ship otherwise insured. Payment upon policies on the Detroit gave no right to put into effect clauses insuring the Augusta, and without such a clause, assuming a liability outside of personal remedies, there is no way to collect collision damages as between vessels of the same owner. Simpson v. Thompson, L. R. 3 A. C. 279. The Detroit’s insurers, therefore, have no standing within the Augusta’s policies, which are personal to the insured thereunder, whose separate premium bought this protection. Hence payments by the Detroit’s insurers discharged in part that loss of the West India Sugar Corporation, without creating or continuing enforceable rights against any other party to this arbitration. Having been compensated to extent of $25,-932 for the Detroit’s loss, the assured’s claim is for the residue, $74,068, not for the Detroit’s full valué. I am asked to include the Detroit’s claim as part of the limited liability proceedings of the Augusta, and therefore as if this $74,068 had been presented and proved in the New Orleans court, and to award here what would have been a pro rata dividend in the distribution of $67,000, the Augusta’s surrender value.
“But claims against the Augusta in such proceedings were wholly distinct from this obligation of the insurers, which is to meet losses respecting sister ships not legally enforceable, because of the common ownership. The claims in the limited liability proceedings were maritime liens on the proceeds of the Augmsta. This insurance liability could in no way have gone into concourse with such liens, and had no standing even in theory as to such proceedings. The losses of the Capitaine de Beauchamp and cargo have received appropriate liquidation by a decree of the entire proceeds less expenses, which sum has been taken out of court. This ‘sister ship clause,’ as here phrased, cannot figure in limited liability proceedings since between vessels of same owner, or operating charterer, no such liability can arise. It is true that this arbitration clause includes ‘all questions of responsibility and amount of liability as between the two ships.’ This means that the arbitrator must weigh the faults and merits in the navigation of each ship, so as to fix the responsibility and ascertain the extent of liability of its respective insurers. Hence $74,068, being the net loss, after crediting all insurance paid is now found due from the Augusta’s insurers, and to be borne according to the sums so insured.”

In quoting at length from the opinion and findings of the arbitrator, we have been influenced as well because of the manifest strength and apparent justice of the same, as because of the source from which it came; Judge Putnam having long been one of the outstanding figures of the American admiralty bar. The following conclusions are eon.trolling in this case:

First. That the liability of the underwriters óf the Augusta was not limited to the amount required to be paid by that ship in the limited liability proceeding. The effect of that proceeding was to relieve the shipowner from liability, except for what was saved from the wreck, however little that might be; whereas, the insurance taken by the shipowner from the underwriters in this ease was to protect him from losses arising from causes and disasters insured against, and as long as the ship’s loss exceeds the amount of the policies issued, and the claim comes within the provisions of the policy, and is not affected by any of its excepting clauses, the policies are liable for the full sum insured.

Second. Under the so-called “sister ship” provision of the “running down” clause of the marine insurance policy, properly applicable to vessels of common ownership, neither the underwriters of the Detroit and its cargo, nor the owner thereof 'as such, can assert any claim against the underwriters of the Augusta. They did not occupy such a relation to the latter ship nor its underwriters as to enable them to do so. The appellants were underwriters of the Detroit, and paid the liability incurred as such, and the appellants sustained a like liability as the underwriters of the Augusta, and upon its payment it would not seem that either such owner or underwriters, and certainly not the latter, would incur any liability to the Detroit or its cargo or to the underwriters thereof; and that the right to maintain the same finds no support either in the plain terms of the clause in question, nor from any reasonable and fair interpretation that can be placed thereon. The reasoning of the arbitrator on this question hereinbefore rebit-ed seems to us entirely conclusive of this subject.

Third. The right of subrogation sought by appellants, underwriters of the Detroit, and who paid on that account $25,-932, is equally untenable. In the most favorable view, they stand in the place of the insured, and can have no recovery against third persons, save such as could have been maintained by the latter. Phœnix Ins. Co. v. Erie Transp. Co., 117 U. S. 312, 320, 321, 6 S. Ct. 750, 29 L. Ed. 873; The Catskill (D. C.) 95 F. 700; The Livingston (D. C.) 104 F. 918; Kaltenbach v. Mackenzie, 4 Aspin. 39; Joyce on Insurance, vol. 5, § 3538, p.( 5883. If no legal liability exists in favor of the underwriters of the Detroit against the underwriters of the Augusta, upon what theory or reasoning could the former secure any right of subrogation against the latter by anything they might do or attempt to do in the matter of the settlement of the undertaking by which they were bound?

Fourth. Appellants insist that they are not bound by the arbitration awards against them; that they were not parties thereto, and never meant to arbitrate any question of the liability existing between the Detroit’s underwriters and its owners. We have given careful consideration to this view of the case, and are forced to the conclusion that the appellants were parties to the arbitration, and were so related thereto as to be bound by the awards therein. They, by their counsel, took part in the proceedings, consented to the inauguration thereof and to the naming of the arbitrator, appeared before him and .participated in.much that occurred, and generally were so circumstanced as to be fully bound thereby. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 329, 16 S. Ct. 564, 40 L. Ed. 712; Swift & Co. v. Jones (C. C. A. 4th Cir.) 145 F. 489, 493, 76 C. C. A. 253; Fudickar v. Guardian Life Insurance Co., 45 How. Prac. 462, 467; Chesapeake Lighterage & Towing Co. v. Western Assurance Co., 99 Md. 433, 442, 443, 58 A. 16; McKinzie v. B. & O. R. R., 28 Md. 161, 174; Kidwell v. B. & O. R. R. Co., 11 Grat. (Va.) 676, 689; Sweet v. Morrison, 116 N. Y. 19, 27, 22 N. E. 276, 15 Am. St. Rep. 376; Hostetter v. Pittsburgh, 107 Pa. 419, 434; Lloyd v. Barr, 11 Pa 41, 49.

The trial court sustained the arbitrator’s findings, and in brief decided that the appellants were parties to the arbitration and bound thereby, and could not avoid the same in this proceeding; that the awards as made were right; that the principle of subrogation did not apply; and that no right of action on behalf of the Detroit arose against the Augusta, by reason of the collision, since the two vessels belonged to the same owner — in all of which we fully concur, as we do, that the decision of the District Court is plainly right, and ought to be affirmed.

Affirmed.


author: SANBORN, Circuit Judge.

text:
      EL DORADO & W. RY. CO. v. CHICAGO, R. I. & P. RY. CO.
    (Circuit Court of Appeals, Eighth Circuit.
    May 4, 1925.)
    No. 6784.
    1. Appeal and error <®=o954(l) — On appeal from order granting or denying temporary injunction, question reviewable is merely whether court clearly abused its discretion.
    On appeal from order granting or denying temporary injunction, question before Circuit Court of Appeals is not whether it would have granted or denied injunction on pleadings and evidence before court below, but whether on record court’s abuse of its discretion is clearly shown.
    2. Railroads <§=>7 — Allowance of temporary injunction against construction of extension across terminal yards and tracks of another railroad held not abuse of discretion.
    Allowance of temporary injunction against construction of 1,500-foot extension across four railroad tracks of another line, on terminal grounds of that line, to connect with a third line without certificate of public convenience or necessity, as required by Transportation Act 1920, § 402 (18), being Comp. St. Ann. Supp. 1923, § 8563 (18), held not abuse of discretion.
    3. Railroads <@=>7 — “Extension” to connect with another railroad heid within Transportation Act, requiring certificate of public convenience and necessity.
    1,500-foot extension across terminal grounds and four tracks of another railroad, to connect with a third, with which connections were already had through use of second road’s facilities, held a direct “extension,” for which certificate of public convenience and necessity was required by Transportation Act 1920, § 402 (18) being Gomp. St. Ann. Supp. 1923, § 8563 (18), notwithstanding section 402 (22), being Comp. St. Ann. Supp. 1923, § 8563 (22), creating exceptions.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Extend— Extension.]
    Symes, District Judge, dissenting.
    Appeal from the District Court of the United States for the Western District of Arkansas; Erank A. Youmans, Judge.
    Suit for injunction by the Chicago, Rock Island & Pacific Railway Company against the El Dorado & Wesson Railway Company. Decree for plaintiff, and defendant appeals.
    Affirmed.
    T. J. Gaughan, J. T. Sifford, J. E. Gaugh-an, and E. E. Godwin, all of Camden, Ark., for appellant.
    Thomas S. Buzbee, George B. Pugh, and H. T. Harrison, all of Little Rock, Ark., for appellee.
    Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.
   SANBORN, Circuit Judge.

The Chicago, Rock Island & Pacific Railway Company, the complainant, brought a suit in equity in the court below for an injunction against the prosecution by the El Dorado & Wesson Railway Company, the defendant, of its petition to the Arkansas Railroad Commission for an order authorizing it to make an extension of one of its railroad tracks at El Do-rado, Ark., for a distance of about 1,500 feet on the right of way of and across four of the railroad tracks of the complainant to a connection with one of the railroad tracks of the Missouri Pacific Railroad Company. The defendant answered the bill of the complainant, evidence was introduced, a final hearing had, and the court below found and held “that defendant has not obtained a certificate of convenience from the Interstate Commerce Commission, authorizing the construction or extension of said track, and that to construct or attempt to construct same without obtaining said certificate is a violation of Transportation Act 1920,” and that court temporarily enjoined the defendant from prosecuting its petition before the Arkansas, Railroad Commission or constructing its proposed extension until it obtained a certificate of convenience or authority therefor from the Interstate Commerce Commission or until the further order of the court.

The defendant has appealed from this injunction and the question in this court is not whether or not it would have granted such an order upon the pleadings and evidence before the court below, but whether or not the record clearly establishes the fact that the court below failed fairly to exercise its discretion in granting its injunction. It is to the discretion of the trial court, and not to that of the appellate court, that the law has intrusted the power to grant or dissolve such an injunction, and when that court has not departed from the rules and principles of equity established for its guidance and has not fallen into any error of law, its orders in this regard may not be reversed by an appellate court, without clear proof that it abused its discretion. American Grain Separator Co. v. Twin City Separator Co., 202 F. 202, 206, 120 C. C. A. 644; Magruder v. Belle Fourche Water Users’ Ass’n, 219 F. 72, 82, 135 C. C. A. 524; Kemmerer v. Midland Oil and Drilling Co., 229 F. 872, 876, 144 C. C. A. 154; Lion Tractor Co. v. Bull Tractor Co., 231 F. 156, 161, 145 C. C. A. 344.

The three railroad companies interested in this controversy are common carriers. The complainant and. the Missouri Pacific Company have lines of railroad extending into and through many states and are engaged in transportation in interstate commerce. The defendant has a railroad, about 12 miles long, extending from Wesson to El Dorado, Ark. Its business is the transportation of lumber from Wesson and oil from a point about 4 miles southeast of El Dorado to the latter city, and then over the railroads of the complainant and the Missouri Pacific Company to points in distant states. It sends over these railroads about 16,800 ears of freight per annum; about 40 per cent, of them pass over the railroads of the complainant, and about 60 per cent, of them over the railroads of the Missouri Pacific Company. The defendant brings all these ears into El Dorado, where its tracks connect with the tracks of the complainant. The complainant then transports the 60 per cent, destined to points on or over the Missouri Pacific lines over complainant’s tracks to the tracks of the Missouri Pacific Company in El Dorado, and transports the 40 per cent, destined to points on and over its lines toward their destination over its own lines. The complainant charges $3.60 per car for transporting the ears from the defendant’s tracks to those of the Missouri Pacific Company. The Missouri Pacific Company absorbs this charge of $3.60.

The extension of the railroad of the defendant from it's tracks to the tracks of the Missouri Pacific, which the defendant seeks to construct, will lie exclusively on the right of way of the complainant and will cross four of fits tracks on its terminal grounds at El Dorado. The complainant has large and valuable terminals at that city, and it claims that the proposed extension of the defendant’s railroad and the operation thereof will seriously interfere with the complainant’s use and operation of its terminal and tracks, and the defendant claims and its witness testifies to the contrary. The testimony is undisputed that the construction and operation of this extension will deprive the complainant of the revenue it derives from its transportation of the cars of the defendant from its tracks to those of the Missouri Pacific. The main line of the 'complainant does not pass the station at El Dorado, but that station is reached by its trains over a Y. The defendant’s proposed extension will cross over the tracks which connect the complainant’s passenger station with complainant’s main line. The complainant has adequate facilities to transport the cars from the tracks of the defendant to those of the Missouri Pacific Company and can perform this transportation on its own tracks.

Mr. Buchner, the vice president and general manager of the defendant, testified that the convenience with' which its cars that pass over the Missouri Pacific lines would be handled would be increased by the construction and operation of the proposed extension, that the defendant had under consideration an opportunity to lease its terminal property at El Dorado to the Missouri Pacific Company for six years, that it was on account of this opportunity to make a lease that it was specially interested in the construction of this extension, but that it desired it in any event. He also testified as follows:

“Q. What is the charge made at present by the Chicago, Rock Island & Pacific Railway for switching .ears between the El Do-rado and Wesson and the Missouri Pacific? A. $3.60.
“Q. Which road pays the $3.60? A. At present, the Missouri Pacific.
“Q. Now, does the fact that this charge is made and the Missouri Paeifie have to pay —that is a factor in the division of the through rate? A. It certainly is. We can get our loads to the Missouri Pacific over this track just as cheaply, or nearly so, as to leave them where they are and pay $3.60.
* *5 #■
“Q. Mr. Buchner, the El Dorado & Wesson gets the same division, does it not, for business delivered to Missouri Pacific points as it does to the Rock Island? A. Yes, sir.
“Q. In other words, the division to the El Dorado & Wesson is the same? • A. It is at the moment.
“Q. Well, how do you think that it would he changed? A. I don’t know that it would be changed.
“Q. It could not be changed, except by the consent of each of the railroads or' the order of the Interstate Commerce Commission, could it? A. No, sir; it could not.
“Q. Under the present arrangement, the El Dorado & Wesson would not earn any more money by taking the freight to the Missouri Pacific than it does now? A. Without the change? No, sir; it would not.”

If the defendant, the appellant here, is earning and receiving the same amount from its transportation business under the existing arrangement and practice that it would receive if the extension sought were completed and in operation, the injunction against its prosecution of its petition for permission to construct it does not seem to have been either injurious, inequitable, or, unjust to that company.

Transportation Act Feb. 28, 1920, chapter 91, 41 Stat. 456, 477, § 402 (18), being Comp. St. Ann. Supp. 1923, § 8563 (18), provides that “no carrier by railroad subject to this act shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this act over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad.” It .also provides in section 405 (4), 41 Stat. page 479, being Comp. St. Ann. Supp. 1923, § 8565(4), that the Commission shall have power to require the use of the terminal facilities of one such carrier by another and to fix the compensation therefor.

Counsel for the defendant, however, contend that the construction of the extension here sought falls within the exception from the jurisdiction of the Commission, stated in section 402 (22), 41 Stat. p. 478, being Comp. St. Ann. Supp. 1923, § 8563 (22), in these words: “The authority of the Commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching or side tracks, located or to be located wholly within one state, or of street, suburban, or interurban eleetrie railways, which are not operated as a part or parts of a general steam railroad system of transportation.” They cite in support of this proposition, and we have read and considered, the opinions in Detroit & M. R. Co. v. Boyne City, G. & A. R. Co. (D. C.) 286 F. 540, 544, 545, 547, 548; Public Convenience Application of A. & S. A. B. Ry., 71 Interst. Com. Com’n R. 784, 792, and other cases.

But the pleadings and evidence in this case leave no doubt that the 1,500 feet of railroad, which'the defendant proposes to. construct on the right of way of the complainant and across four of its railroad tracks on its terminal grounds at El Dorado,, is a direct extension of the railroad of the defendant from the terminus of one of its tracks' to the terminus of one of the tracks of the Missouri Pacific Railroad Company, that the purpose of the proposed construction is and the effect of it, if permitted, will be, by the lease thereof by the defendant to the Missouri Pacific Railroad Company or by some other arrangement between them, to operate it or cause it to be operated for the through transportation over the railroads of these companies of interstate freight from and to-' Wesson and other stations on the defendant’s railroad to and from points in other states, such as the points north of the Ohio-river and east of the Missouri river to which Mr. Buchner testified that all the lumber from the defendant went. Dayton-Goose Creek R. Co. v. United States, 263 U. S. 456, 483, 44 S. Ct. 169, 68 L. Ed. 388, 33 A. L. R. 472; Railroad Commission of California v. Southern Pacific Co., 264 U. S. 331, 338; 342-346, 44 S. Ct. 376, 68 L. Ed. 713. And. our conclusion is that the court below neither fell into an error of law in its conclusion* that the question whether or not the present or future public convenience and necessity, require or will require the construction- of this extension was within the jurisdiction of the Interstate Commerce Commission, nor-abused its discretion in granting the injunction.

The order for the injunction is- therefore affirmed.

SYMES, District Judge, dissents*


author: MORROW, Circuit Judge.

text:
    UNITED STATES v. KING COAL CO.
    (Circuit Court of Appeals, Ninth Circuit.
    May 11, 1925.)
    No. 4401.
    1. Collision <§=>73 — Moving vessel presumed in fault for collision with anchored vessel.
    A collision between a moving vessel and one anchored in a proper place and carrying proper anchor lights is presumptively due to the fault of the moving vessel, which has the burden of proof to show absence of negligence.
    2. Collision'<§=>71 (2) — Collision between moving and anchored vessel held not shown to be due to inevitable accident.
    The blowing out of a fuse, causing the electrical steering gear of a submarine to become inoperative and the vessel to swing with the tide and come into collision with an anchored barge, held not to establish the defense of inevitable accident, where the vessel was suddenly put up against a strong running flood tide, throwing on the steering apparatus a load too great for the fuse to carry.
    Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, Judge.
    Suit in admiralty for collision by the King Coal Company, owner of the barge Ruth, against the United States, owner of the submarine R-19. Decree for libelant, and the United ; States appeals.
    Affirmed.
    Suit brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats, of U. S. pt. 2, p. 1467).
    Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for the United States.
    Ira S. Lillick, of San Francisco, Cal., for appellee.
    Before GILBERT, HUNT, and MORROW, Circuit Judges.
   MORROW, Circuit Judge.

On October 11, 1918, the barge Ruth, owned by libelant, was anchored in San Francisco Bay, off the docks of-the Union Iron Works. The barge remained at this anchorage until October 18, 1918, when the submarine R-19, owned by the United States, coming down from Mare Island at about 8:45 p. m., turned into the Union Iron Works to take on supplies for San Pedro. The Ruth had the proper anchorage lights burning and the night; was clear. Objects on -the bay were normally visible. When the R-19 came within about 800 feet of the barge, at a speed of from 9 to 10 knots an hour, different commands were given by the commanding officer to reach the dock of the Union Iron Works. The navigation of the submarine resulted, in. its crashing into the barge, causing the damage for which this suit was brought. Libelant was awarded the sum of $19,179.26 for damages, together with costs. An order was entered dismissing the cross-libel, and the United States appeals.

There are two defenses:

First, that the barge was anchored in a forbidden area.

Second, that the aeeident was unavoidable.

Because of the alleged improper anchorage, a cross-libel was filed by the United States, claiming damages for injury to the submarine.

This suit was brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats. U. S. pt. 2, ,p. 1467).

The lower court held that the testimony was not definite and not easy of comprehension as to whether the barge was anchored in the forbidden area; but the testimony did show that the barge had been anchored there for about eight days previous to the aeei-dent, and no complaint had been made by the harbor authorities.

As to the second defense, the lower court held that the United States did not establish clearly that the accident was unavoidable.

It is alleged in the libel that at the time of the collision between the submarine R-19 'and the barge Ruth, the latter was at anchor in San Francisco Bay off the docks of the Union Iron Works, northeast by north about 1.800 feet.

In the cross-libel of the United States it is alleged that at a point about 1,200 feet off the shore from the wharves of the Union Iron Works, the submarine R-19 came upon and collided with the barge Ruth; that the latter was anchored at a point which obstructed the course of vessels landing or attempting to land at said wharves and at a point where anchorage was forbidden by the state harbor commissioners.

In the answer of the United States to the libel, it is alleged that the collision of the submarine R-19 with the barge Ruth occurred at a point approximately 1,500 feet off the docks of the Union Iron Works. It is denied that the barge was at said time about 1.800 feet off of.said docks, or any greater distance off said docks than, approximately 1;500 feet. It is-alleged that when the accident occurred, the submarine R-19 was attempting to make a landing at the Union Iron Works, and in doing so, proceeded to pass above the barge Ruth, and the current helped to sweep the submarine down against said barge.

The docks of the Union Iron Works are located at the southern extremity of the San Francisco water front. Between the docks of the Union Iron Works and the free and open space of waters of the bay is a strip of water, 1,500 feet wide, designated by the board of state harbor commissioners as forbidden anchorage. This strip of water extends along the water front of the harbor from Point Avisadero in a northwesterly direction to Pier No. 46. There is another strip of water 1,500 feet wide extending from the Western Pacific ferry slip, south of the Union Iron Works docks, across the Bay of San Francisco, in a northeasterly direction, to the Southern Pacific Railroad Company and the Western Pacific Railway Company training walls on the Oakland water front. This strip is also designated as forbidden anchorage.

These designations by the harbor commissioners of forbidden anchorages in the harbor were authorized by section 2524 of the Political Code of the State, since superseded and jurisdiction assumed by the United States by the Act of Congress of January 28,1915, creating the Coast Guard, etc. (38 Stat. pt. 1, p. 800; Comp. St. §§ 8459%a[l]-8459%a[6]), and section 7 of the River and Harbor Act of March 4, 1915 (38 Stat. pt. 1, p. 1053 [Comp. St. § 9959a]); but the strips of such forbidden anchorages do not appear to be buoyed or otherwise marked or designated, so that their boundaries on the water are not made visible to the ordinary observer. They appear to be ascertainable mainly by directions from maps and charts with reference to objects on shore, and by the experience of pilots.

The two strips^ of water designated by the harbor commissioners as forbidden anchorage passing in front of the docks of the Union Iron Works cross each other south of the Union Iron Works, leaving a triangular space of free and open water outside and between the strips of forbidden anchorage waters in front of the docks of the Union Iron Works.

These free and open water spaces in the harbor of San Francisco are .now designated as anchorage areas by the Secretary of War, exercising the jurisdiction of the United States in accordance with the rules and regulations issued February 9, 1921. But as the collision here in controversy occurred -October 18, 1918, we will refer to the areas as they were then designated.

Whether the barge Ruth was anchored within the free and open water of the harbor, or within the forbidden anchorage, passing immediately in front of the docks of the Union Iron Works, is exceedingly difficult to determine from the testimony; and the maps and charts are of but little assistance in fixing a definite location for the barge.

When the collision occurred, the side of the submarine scraped along the anchor chain of the Ruth and ran out several fathoms. 'Subsequently, the Ruth was beached, when the anchor chain was slipped and the anchor buoyed, and evidence was introduced tending to show where the anchor was found, but the directions and distances given are not clear. There is, however, testimony tending to show that the Ruth was anchored in the free and open water of the harbor, or, as we would say now, she was anchored within an authorized anchorage area.

The court below was unable to determine from the evidence and the maps and charts the location of the barge Ruth at the time of the collision. We, finding the same difficulty, resort to the more satisfactory testimony of Capt. Meyns, in command of the Merchant Towboat Company, who anchored the barge. This he did on October 11, 1918, and testified that he anchored her off the docks about 1,800 feet in open water. This would be in the open water or anchorage area, and beyond the forbidden anchorage in front of the docks of the Union Iron Works. This witness had been a captain of a tugboat in San Francisco Bay for 31 years, and had anchored more than a thousand vessels. He testified that it was a custom in the harbor of San Francisco for the harbor commissioners to notify any one when a vessel was anchored in forbidden anchorage, and compel them either to remove the vessel, or the vessel was removed by the harbor commissioners at the expense of the owner. The evidence shows that the barge remained where Capt. Meyns anchored her, without objection from the harbor commissioners, for a period of 8 days prior to the collision. There is a presumption in favor of the testimony of this witness by reason of his experience and reliability and the failure of the harbor commissioners to object to the anchorage of the Ruth.

We think, in view of all the facts, the court below was right in holding that the anchorage of the barge in a forbidden area was not established by the evidence, and that no negligence can be attributed to her on ¿that account.

As to the second defense, that the collision was unavoidable, Lieut. William F. Call-away, who was in command of the submarine at the time of the collision, testified:

“When I arrived at a point which I considered the proper one to make the turn into the Union Iron Works, considering the entrance of the harbor and anchored craft around there, I put the rudder right and brought the vessel around 90 degrees, or possibly a little more, and our course at that time was pointing — we had the tide slightly forward of the beam, that is, we were pointing slightly up against the tide — not perpendicular to it; slightly up against the tide, just up a little.”

He was asked, after having put the rudder right, what, if anything, was done with regard to switching from the engines to the motors :

“A. I don’t recall just the instant of shifting from the .engines to the motors. It-was about the time of the turn. We stopped .the engines and went to the electrical motors, to better be able to maneuver the ship, as the engines will not back.
“Q. Having put your rudder to the right, what, if anything, thereafter did you do with reference to the rudder? A. After we had made our right'turn and were headed on the course which I judged would best clear the traffic and carry us into the Union Iron Works, the left rudder was given in order to steady the ship on her course, and then order was given to ‘rudder amidships,’ which involved, of course, the right rudder.
“Q.- What, if anything, happened after the order was given for ‘rudder amidships’ ? A. After the rudder was given amidships, I noticed that the ship was not steady, was easing off to the left; so I gave ‘right rudder.’
“Q. What, if anything, happened then? A. The ship then kept easing off to the left. Before this we had seen the barge, which-afterwards turned out to be the Ruth, and noticed that we. were easing over toward her, was the reason we had given ‘right rudder.’
“Q. ‘Right rudder’ the second time? A. Yes; that is, from amidships. After you give the ‘amidships’ you ease off to the right; in fact, she was easing toward the left, down towards the Ruth. By that time I saw that we were going to pass her closely, and I increased the speed in order to get across, and then, after I saw that the bow would clear the Ruth, I gave -the orders for ‘hard left’ in order to throw the stern away from her, but just the time we were crossing her, or right at the time, it was reported that the electric cal steering gear was inoperative, and then I gave the orders to shift to hand steering. By that time we had crossed the bow'of the Ruth and struck her anchor chain, and our stern struck her a glancing blow on ■ the bow. After passing across her, we had the hand steering put in, and we rounded the stern of the Ruth, and came- up on her starboard side, and some time during that time we shifted back to the electrical gear.”

This witness testified further:

“It was necessary to use the electrical steering device going in. We had to cross the bow of the Ruth, practically, to make a 9’0-degree turn, and after we entered into the Union Iron Works’ basin we had to make another 90-degree turn in order to get into, the'slip. * * • The chief electrician reported to me, as his duty required, of the fuse blown in the steering circuit.”

On cross-etamination this witness said:

“I can’t recall the exact speed which I gave,, but it was probably around, ór I would say,. I would judge it was around nine knots, or-ten knots, and then after I saw that the ship was easing over to the left towards the Ruth,, I increased the speed in order to pass ahead, of her more quickly.”

The witness was asked:

“Can you state how far you were away-from the barge Ruth when you first observed, it? A. I can’t give the distance that I was. from the barge Ruth when I first observed; her, but I observed her long before we ever-made the 90-degree turn, because we had seen ships anchored before the entrance to, the Union Iron Works, and I was observing-not only the shore line, but the vessels around: the place where I intended to go in.
“Q. Can you state how far you were away-from the Ruth before it gave you any con-, cern as to the manner in which you would-maneuver your own vessel? A. I was considering the Ruth at the time I made my-right turn, because I had 'seen her before that, and we saw the vessel in front of the-entranee to the harbor, and I necessarily considered her when I made my right turn.”

The witness was asked:

“How do you account for the submarine-colliding with-the Ruth, then? A. The submarine collided with the Ruth due to the-steering gear becoming inoperative with left rudder on, and allowing the R-19 to gain, ground to the ieft, instead of pursuing the-course which I had contemplated pursuing.”

Lieut. Leverett S. Lewis, who was the navigator and at the wheel of the submarine-at the time of the collision, testified:

“When we got off the Iron Works, we-turned with the right rudder to head in to., the dock; as a usual thing, in making 90-degree turn, we use about 25 degrees right rudder.
“After we had completed' the turn of approximately 90 degrees, the captain ordered left rudder, to steady her on the new course, which is customary, and I put the controller to the left, putting on the left rudder to steady, her; there was about a four-knot tide, flood tide, at this time, and after we completed the turn, a barge was noted on our port bow at anchor.
“Q. That left rudder, you say, was for the purpose of steadying the submarine? A. That left rudder was for the purpose of steadying her on the new course. After a boat starts to turn, it turns very rapidly, and it is necessary to give her the opposite rudder for just a few seconds to steady her. As that happened at this time, the captain said ‘left rudder’ to steady her on the course, and then ‘rudder amidships.’
“Q. How long a time elapsed between the time of the order of ‘left rudder’ and ‘rudder amidships,’ approximately? A. Approximately five seconds.
“Q. Now, about how far was the submarine from the barge at the time that order was given, ‘rudder amidships’? A. The barge was about broad on our port bow, and in such a position that it seemed we would clear her by 100 feet.
“Q. What was the next maneuver? A. The captain evidently noticed at this time that the boat was starting to swing to the left, because he gave the order ‘right rudder,’ and immediately after that we noticed that the tide was setting us down on the Ruth, and the bow was not swinging to the right; and the captain then saw that although the bow of the submarine would clear the Ruth, it was possible that the stern would hit, so then he gave ‘full left rudder’ to throw the stern out, and went ahead on the motors to increase the speed. Our side scraped along the anchor chain of the Ruth and ran out several fathoms of the chain, and then the port side aft of the submarine hit the bow of the Ruth a glancing blow.”

This witness was asked:

“Q. What is your explanation as to the reason why this fuse blew out ? A. The only explanation I could offer is that the strong tide running at that time, the rudder was put up against the tide, and that the load was too great for the fuse to carry. The only other explanation would be defective fuse, and that very seldom happens, I believe.”

Robert S. Pearson was chief electrician on the submarine R-19 at the time of the collision with the barge Ruth. He testified that he was on the bridge at that time, saying:

“At that time we saw that the barge Ruth was in very close proximity to us, and the commanding officer ordered ‘hard right rudder,’ in order to be sure to clear her. x * * iji^g ru¿¿er evidently did not take, and the commanding officer, seeing that a collision might be caused, ordered ‘hard left rudder’; at that time the man in the conning tower, who was watching the indicator - — there is an indicator in the conning tower that designates by five degrees how the rudder acts — noticed that the steering gear was out of commission. The order was given to rig the hand-steering gear. Before this could be done, we raked the Ruth’s anchor chain, and our stern collided with her bow.”

. This witness was asked:

“What was the cause -of the refusal of the rudder to respond to the will of the operator under the command ‘right rudder’ ? A. Both fuses were blown out.”

Witness was asked:

“Have you ever known of a steering gear fuse to have blown out before? A. Not on the R type boats.”

These three witnesses were officers of the submarine R-19, called by the United States, and the situation was clearly stated by them, aside from the discrepancy in the testimony of the commanding officer and the navigator 'as to the time when the Ruth was discovered. The barge Ruth was at anchor with her anchor lights burning. Her anchorage was not in a forbidden area. Her visibility to moving shipping was normal, and her position was discovered in time for safe navigation on the part of the submarine. The presumption is, in such a situation, that the barge at anchor, properly lighted, was not at fault, while, on the other hand, the presumption is that the moving submarine, charged with reasonable caution, was at fault, and the evidence supports this presumption.

The United States contends that the collision was unavoidable, and that the commanding officer had the right to rely upon the electric steering apparatus, and that the blowing out of the fuse was an accident that could not be anticipated.

Counsel for the United States contend that the facts in this case bring it within the interpretation based upon the facts of the ease of The Olympia, 61 F. 120, 9 C. G. A. 393. The collision in that case occurred when the tiller rope on the Olympia broke. The court held that the accident was caused by a latent defect in the rope which could not have been discovered by reasonable inspection; consequently, the collision was held to have been caused by an inevitable accident. But in the course of his opinion, Judge Lurton of the Circuit Court of Appeals for the Sixth Circuit makes a distinction applicable here. He said:

“The defendants say, 'Our tiller rope broke, and the vessel became unmanageable, and the collision unavoidable.’ That only shows that the breaking- of the tiller rope was the cause of the collision. They must go further, and show that the cause which operated to break the tiller rope was unavoidable. The collision was but the result of the cause which produced a broken tiller rope. If that cause is not shown to be unavoidable, how can it be said that the collision was an inevitable accident? Unless the defendants can get rid of the negligence proved against them by showing the cause which broke this wheel rope, and that the result of that cause was inevitable, or by showing all the possible causes which might have produced such an effect, and then showing that the result of each one of these possible causes could not have been avoided by them, they have not met the burden of proof which rests upon them. ® Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the probable cause.” Here is the distinction: “The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way.”

Had the commanding officer, under the circumstances disclosed in the testimony, the right to put the electric steering apparatus, controlling the rudder, up against a strong running flood tide, throwing suddenly on the apparatus a load too great for the fuse to carry?

The burden is clearly upon the officers of the submarine to justify such dangerous navigation. ' The strain on the electrical apparatus should have been anticipated when too' great, a load was placed upon it. In the situation we have here presented, the doctrine-applicable is res ipsa loquitur — the situation speaks for itself — and fixes the charge of negligence upon the submarine.

The decree of the District Court is affirmed.


author: PHILLIPS, District Judge.

text:
    CHICAGO, M. & ST. P. RY. CO. v. YOUNGERS.
    (Circuit Court of Appeals, Eighth Circuit.
    April 13, 1925.)
    No. 6580.
    1. Negligence <§=>65 —■ “Contributory negligence” defined.
    “Contributory negligence” is a want of ordinary care on the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.
    [Ed. Note. — For' other definitions, see Words and Phrases, First and Second Series, Contributory Negligence.]
    2. Carriers <§=>333(1) — Duty of passenger leaving train to exercise ordinary care.
    ■ It is the duty of a passenger in leaving a train to exercise ordinary care for Ms own safety.
    3. Carriers <©=>333(3) — Passenger injured in alighting from train without invitation from trainman held chargeable with contributory negligence.
    Plaintiff, a passenger in a day coach at night, was asleep when the train stopped at Ms station, but awoke after the train started, and a brakeman offered to stop it and did so, opening the vestibule doors while it was still moving, then going inside to signal. Plaintiff went to the lower step, and when the train stopped was holding to the handrail and reaching for the ground with his foot, when, as he testified the train started, throwing him off, and he fell through a trestle and was injured. He was not seen by the brakeman after signaling. Plaintiff Jived in the town, and knew the location of the trestle. Held, that there was no invitation to him to alight at that place; that it was his duty to wait until the trainmen could ascertain its safety, and that in failing to do so and in hastening to alight he was chargeable with contributory negligence.
    In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.
    Action at law by Theodore L., Youngers against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed, with instructions.
    Ed. L. Grantham, of Aberdeen, S. D. (H. O. Hepperle, of Aberdeen, S. D., and T. M. Bailey, of Sioux Palls, S. D., on the brief), for plaintiff in error.
    A. B. Fairbank, of Sioux Palls, S. D. (Boyce, Warren & Fairbank, of Sioux Palls, S. D., and Dan Hanson, of Parker, S. D., on the brief), for defendant in error.
    Before SANBORN, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.
   PHILLIPS, District Judge.

Theodore L. Youngers, hereinafter called plaintiff, brought this action against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, hereinafter called Railway Company, to recover damages for personal injuries. Prom a verdict and judgment for plaintiff, the Railway Company sued out a writ of error to this court.

Plaintiff purchased a ticket from the Railway Company’s agent at Sheldon, Iowa, for passage from Sheldon to Parker, S. D. On December 8, 1921, he boarded the passenger train of the Railway Company at Sheldon. He occupied a seat on the left-hand side of the day coach. During the course of his journey, he fell asleep, and was asleep when the train reached Parker. The station of Parker was called, the train stopped, ánd ample opportunity was afforded plaintiff to get off at Parker; but on account of being asleep he failed to do so. As the train was leaving Parker, plaintiff awakened and saw the brakeman coming into the front end of the day coach. The brakeman called Marion, the next station. Plaintiff got up, walked to the front end of the coach, and told the brakeman that he should have gotten off at Parker. The brakeman stated he would stop the train and permit plaintiff to get off.

The plaintiff testified:

'“I was asleep when the train got to Parker. I heard some noise, or something wakened me, and the brakeman came into the front end of the coach and called the next station, Marion. I got up and walked over to where he was and told him I was supposed to get off at Parker. He said he would stop the train and let me off." I was in the aisle of the day coach, down toward the front door. * s' ® He went up to the front end of the day coach and pulled the bell' cord. Then.he stepped to the right into the vestibule and opened some door there, pulled up the door and pulled the door over and opened the doors. The train slowed up after he pulled the bell cord. * * * When the train stopped I stepped down onto the steps and tried to get off, stepped on the bottom step and took hold of the handrail with my right hand and had my right foot on the step. I was groping down with my left foot, trying to make a landing. The train jerked and broke my grip and threw me off; I mean it broke the grip of my hand on the rail. It was quite dark. There was only the light that shone in there from the day coach. ® ® * The reason I knew the train stopped was,- everything was quiet, I couldn’t hear or feel any motion of any kind, and the brakeman was gone and nobody around. I thought it was time for me to get off and let them start the train. When I fell I struck the comer of the beam of the bridge and fell 15 or 16 feet from that beam. There was some moonlight that night, on the south side. The north side of the train was dark, and I could not see where I was at all until after the accident. í « • j Hele! onto the handrail with my right hand. That was' the rail to the west. I had my grip in my left hand, and my overcoat on. ® * * All I know of the jerk was that it threw me off, it broke my grip on the handrail. When I hit the bottom I was in a sitting position. * * * The trestle is about 200 feet long. * * ' -■ After I told the brakeman I wanted to get off the train, I saw him puli'the bell cord. I then saw him open the trapdoor. ® * *' He stepped back somewhere. I don’t know where he went. I couldn’t say whether he went into the smoker or not. I didn’t see him. I paid no attention to where he went. The train was coming to a stop, and I did not take note of where he went. At the time that he lifted the trapdoor the train was slowing up. * * * He stepped back and was gone. I saw no more of him. The last thing he said was that he would stop the train. He said nothing further and I said nothing further. * ® ®
“I started out and went down the platform onto the steps, to the right, and held on with my right hand. I continued to hold the side rail with my right hand, the bag in my left hand. I was groping for the ground with my left foot, to find the ground, when something jerked me off, broke my grip. I was groping down to reach the ground, so as to land on the ground. I was reaching down with my foot to find the ground. * * * I was thrown backwards. It threw me kind of with the train, in the direction the train was moving.”

The plaintiff had lived at Parker for nine years prior to the accident, and was familiar with the physical surroundings in the vicinity where the accident occurred. He entertained some doubt that he could leave the train in safety at the place it stopped. On these points he testified as follows:

“The river flows from the south and flows away north. It was about five blocks from the depot to the river. The town runs up to the river, right up to the river bank. I have been living in Parker nine years. I knew the river was there. I know about that part of ■ the town. ‘ * * I knew there were some bad. places along the track. I didn’t know just how far it was to the ground. It had thawed some and I wanted to be sure, if I couldn’t reach the ground, I could get baeE on the step.”

The brakeman testified:

“I boarded the train in the head end of the ladies’ coach. It had pulled, up about a ear length. The train was then in motion. I went up the steps and stepped inside the coach before working the vestibule. I was carrying a lantern. I set my lantern inside the coach. I did not at that time close the vestibule door, or trap. I saw a man from the middle of the ear on the south side come running up the aisle. He wanted to know where we were at. I told him- the next station was Marion Junction. He said he wanted to get off at Parker. He came to the vestibule and wanted to get off while the train was going. I said, ‘No, I will stop the train.’ He said they were not going too fast to get off. I said, ‘No; wait until I stop the train.’ I stepped into the ladies’ car and pulled the signal cord. I stepped back into the vestibule, stayed there a few seconds, and didn’t think the train was stopping. I pulled the cord again. * * * I stepped inside the smoker and pulled the signal cord. After that the train stopped. I stayed there a second, and saw it was stopping, setting the brakes, and I stepped back into the vestibule. I did not see Youngers. * * * I did not know he had gone down the steps at that time. I didn’t see him going down there. When I went into the smoking car, he was on the opposite vestibule, the south side. * * * I heard somebody say ‘Oh!’ right after the train stopped. I was in the vestibule, down the second last step. It was right after the train stopped. It was a gradual, ordinary stop. There was no further movement of the train before I left it.”

As a result of the fall plaintiff suffered injuries for which he seeks recovery in this action, on the ground that the same were caused by the negligence of the Railway Company: (1) In that the agents of the Railway Company stopped the train and invited him to alight at an unsafe and improper place; and (2) in that they moved che train while he was in the act of so alighting.

At the close of the evidence, counsel for the Railway Company moved the court to direct a verdict in favor of the Railway Company, on the ground, among others, that the evidence showed as a matter of law that plaintiff was guilty of contributory negligence. This motion was overruled.

The Railway Company stopped its train at Parker after having called the station. It afforded plaintiff ample opportunity to leave the train in safety at that point. The failure of plaintiff to leave the train was solely due to his own fault. Plaintiff advised the brakeman of his failure to get off at Parker, after the train was in motion leaving Parker. The brakeman offered to stop the train and proceeded to signal the engineer by pulling the signal cord. This signal called upon the engineer to immediately stop the train, but did not apprise the engineer of the reason therefor. According to plaintiff’s testimony, the brakeman opened the vestibule door and raised that portion of the platform over the steps while the train was yet in motion. The brakeman, then believing the train was not stopping, went into the smoking car to again signal the engineer. The brakeman did' not again see plaintiff until after the accident had occurred.

Counsel for the Railway Company argue with much force that the circumstances and physical facts show plaintiff undertook to leave the train while it was yet in motion. This plaintiff in his testimony denied. Certain it is, however, that plaintiff went onto the steps immediately upon the train coming to a stop, if not before. It was not a usual stopping, place, but a special stop for plaintiff’s accommodation. There was no express invitation to plaintiff to alight at the place where the train stopped. He relies upon an implied invitation by the opening of the ear door and the raising of the platform. Opening the door and raising the platform before the train stopped could not possibly have been an invitation to alight at the point where the train actually stopped. When those acts were done by the brakeman, the train was yet in motion and neither he nor plaintiff knew just where the train would stop. Plaintiff started to leave the train and suffered the accident, before the trainmen had any opportunity to ascertain if the place was safe. The undisputed facts show there was no invitation express or implied to plaintiff to leave the train at the place where the accident occurred.

Plaintiff’s right to recover, if at all, must therefore be based on the alleged movement of the train while he was in the'act of alighting. The jerk or movement of the train after it had come to a stop is denied by the testimony of the brakeman, conductor, engineer, fireman, baggageman, J. Gf. Anderson, a passenger on the pullman, and A. P. Meyer, a passenger on the day coach. Dorothy Proctor, a witness for the plaintiff, testified : - “I don’t remember anything unusual that happened in the making of the stop; don’t remember any movement it made after it stopped.” Mrs. E. L. Boone, a passenger, testified in behalf of the plaintiff that there was a jerk of the train. She had previously made a voluntary statement to the contrary, which was introduced in evidence by the Railway Company.

One of the errors assigned is that the lower court erred in overruling the motion of the Railway Company for a directed verdict in its favor, on the ground that the proof showed as a matter of law that plaintiff was guilty of contributory negligence.

“Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” Murray et al. v. Southern Pacific Co. (C. C. A. 9) 236 F. 704, at 706, 150 C. C. A. 36, 38; De Honey v. Harding (C. C. A. 8) 300 F. 696, at 699.

It was the duty of the plaintiff, in leaving the train, to exercise ordinary care for his own safety. St. Louis & S. F. R. Co. et al. v. Quinette (C. C. A. 8) 215 F. 773; Ouellette v. Grand Trunk Ry. Co., 106 Me. 153, 76 A. 280, 138 Am. St. Rep. 340; Farrell v. Great Northern Ry. Co., 100 Minn. 361, 111 N. W. 388, 9 L. R. A. (N. S.) 1113; Kellogg v. Smith et al., 179 Mass. 595, 61 N. E. 138.

In Farrell v. Railway Co., supra, the court said:

“It is elementary, and in this state well settled, that the duties of carriers and passengers are reciprocal. If carriers are held to the highest degree of care for the safety of passengers, passengers ought to be held to the exercise of ordinary care to protect themselves.”

If plaintiff failed to exercise that reasonable degree of care which a man of ordinary intelligence and prudence would have used in his situation, and this failure directly contributed to cause his injury, he was guilty of contributory negligence.

After the train stopped, in the absence of an invitation to there alight, plaintiff should have given the trainmen an opportunity to ascertain the conditions of the place and move the train if need be. Instead of so doing, he hurriedly left the train. With his face to the inside of the vestibule, his right hand on the handrail, his grip in his left hand, he backed down the steps and was groping in the dark with his foot to determine whether there was a footing or landing, when, as he testified, the train jerked and caused him to fall. Can it be said that a man of ordinary prudence would in that manner step from a train into utter darkness, when he fully knew it was at a point other than its usual stopping place, in the vicinity of a long bridge, where there were bad places along the track, and when he had such a doubt in his own mind, that he was groping with his foot to see if there was a safe landing place? We think not. We believe the plaintiff’s own testimony shows that in his anxiety to leave the train, without giving the agents of the Railway Company an opportunity to ascertain if the place was safe, he hurried out, willing to take the chance, and, without due regard for his own safety voluntarily placed himself in a position of danger. We' cannot escape the conclusion that the uncontroverted evidence conclusively proves that he failed to exercise that reasonable degree of care which a man of ordinary intelligence and prudence would have used in his situation, and that this failure directly contributed to cause his injury. We believe the minds of all reasonable men in the exercise of an impartial judgment could reach no other conclusion. Such being the fact, the trial court should have directed a verdict for the Railway Company, and its failure so to do was error. Gilbert v. Burlington, C. R. & N. Ry. Co. et al. (C. C. A. 8) 128 F. 529, 63 C. C. A. 27; Chicago, M. & St. P. Ry. Co. v. Bennett (C. C. A. 8) 181 F. 799, 801, 104 C. C. A. 309; Chicago, R. I. & P. Ry. Co. v. Baldwin (C. C. A. 8) 164 F. 826, 829, 90 C. C. A. 630.

The cause is therefore reversed, with instructions to grant the Railway Company a new trial; and it is so ordered.