City of Chicago v. Mullen

1. Navigable Waters—Injury of-Vessel by Draw of Bridge—Negligence of Tender. An injury to a schooner by being struck by the draw of a bridge in Chicago river, while she was being towed through, held, under the evidence, to have been due to the gross negligence or incompetency of the bridge tender in failing to stop the draw when it had swung to the proper position. 2. Same—Ordinances Kegulating Drawbridges—Signals for Passing. The ordinances of the city of Chicago for the protection of the bridges over the Chicago river prohibit any vessel from approaching nearer to any of said bridges than the end of the bridge protection when the bridge may be opening or closing. The same ordinance also provides for the maintenance on each bridge of signals to be operated by the bridge tender to notify vessels approaching when the bridge is closed and when open for passage. Held, that a tug was not in fault for approaching and entering the opening of a bridge with her tow, after the signal that it was open had been given her by the bridge tender, notwithstanding the fact that the draw had not then been fully opened and locked.

Appeal from the District Court of the United States for the Northern District of Illinois. In Admiralty. On April 26, 1900, the schooner Commerce was proceeding down the Chicago river toward Lake Michigan in tow of the tug O. B. Green. She had been taken in tow by the tug at a dock just north of Kinzie street, on the North branch of the Chicago river. After passing the Kinzie street bridge and the two railroad bridges, and at about the junction of the North and South branches of the Chicago river, the tug blew the usual signal for the Wells street bridge to open. This bridge was 400 feet further down the river. The bridge did not open promptly, so the tug checked her speed or came to a full stop, and blew a second signal for the bridge. In a short time the bridge tender rang the bridge bell, and, as claimed by the Dun-ham Towing & Wrecking Company and denied by the city of Chicago, lowered the red-ball signal, and began to open the bridge, swinging the north end of the bridge toward the east, the direction in which the tug was heading. The tug, with the schooner in tow, then started for the north draw of the bridge at a moderate rate of speed. The bridge, instead of stopping when it was fully open due east and west and parallel with the bridge protection, continued to swing. The bow of the schooner had reached a point just east of the west end of the center protection of the bridge, and as the bridge continued to swing it fouled the forerigging of the Schooner, and caused the damage complained of. Edward Mullen, the owner of the schooner, filed his libel in personam - against the city of Chicago and the Dunham Towing & Wrecking Company, the owner of the tug, to recover the damages sustained. The libel attributed the fault .to the negligence of those in charge of the bridge in not stopping its course after it had been opened, and in permitting it to swing ¿iter it had been fully opened for the passage of the schooner, and after she had been permitted to enter the draw or channel in range of the bridge. The libel charged no fault upon the Dunham Towing & Wrecking Company, but propounded that the tug would be charged with fault by the city of Chicago, and therefore made the owner of the tug party to the libel, being unable, as the libel states, to point out any special fault or negligence of which the tug was guilty, but, if such fault should be discovered, asked to avail himself of the privilege of so charging and urging any fault that may be established against the tug by any of the parties to the proceeding. The city of Chicago by its answer charged no fault upon the schooner; asserted that when the whistle of the tug was sounded the bridge tender prepared to swing the bridge to an open position; “that the bridge ball which is used as a signal for on-coming vessels, as provided in and by the ordinances of the city of Chicago hereinabove set forth, when up warning them not to enter the draw, and when down as a signal for them to proceed through the draw, was left up upon said bridge, and so remained at the time and during the collision; that said bridge ball was left up as a signal to said tug O. B. Green and said schooner Commerce to stop and not to proceed towards said bridge.” It then charges that the tug and schooner were at a sufficient distance from the bridge to avoid the collision, but no effort was made by the tug to stop, but it proceeded toward the bridge without checking its speed; “that while said tug and schooner were coming on at a moderate speed the bridge tender was swinging said bridge to an open position; that the bridge ball was still up on said bridge as a signal for said tug and schooner not to come on; that said bridge ball was left up upon said bridge as a signal to said tug and schooner* not to proceed toward said bridge until said bridge was in an open position and stopped in the center of the river; that said tug and schooner, not regarding said bridge ball signal being up, came on without checking their speed; that when said bridge reached an open position said bridge tender was unable to cheek the speed of said bridge and stop it, and said bridge continued swinging beyond an open position, and before it was stopped some damage was done tc said schooner.” The answer charges the collision to the fault and mismanagement of the schooner or her tug in not stopping in accordance with the bridge-ball signal displayed and in accordance with the ordinances of the city of Chicago; “that the only signal to vessels to proceed toward the draw is the lowering of the bridge ball in the day time, and of the red light in the night;” and that the collision would not have occurred had proper efforts been made by the tug to stop the schooner. The answer of the Dunham Towing & Wrecking Company charges that, in answer to the signal of the tug to open the bridge, the bridge tender in charge lowered the red-ball signal and opened the draw of the bridge, and the tug, with its tow, proceeded at a moderate rate of speed down through'the north draw of the bridge; and after the tug had entered fully into the draw, and the schooner, in tow of the tug, was about entering the draw, the bridge, without warning, started to close again, the west end of the bridge swinging around to the north instead of remaining at the center after the bridge was fully opened, and the west end of the bridge was thus swung around directly in front of the schooner, and fouled, and caught in the schooner’s rigging, doing the damage,—the fault being charged wholly upon the bridge tender. The ordinances of the city of Chicago referred to in the answer are as follows: ' “204. (Vessel Signals.) The commissioner of public works is hereby required to provide and maintain at the several bridges over the Chicago river and its branches, in the best and most practicable manner, vessel signals as required by this article. “205. (Signals Prescribed.) Said signals shall be material of a red color for use in the day time and shall be of such size and so placed, when elevated that they may be readily, seen up and down the river. The signal for the night time shall be a red lantern of such size and so placed and arranged when elevated as to be easily seen up and down the river and the street. “206. (Duty of Vessels.) It shall be unlawful for the owner or owners, officer or officers, or other person or persons in charge of any vessel or vessels navigating the Chicago river or its branches or any part thereof, to attempt to pass any of the bridges oyer the said river or its branches, while said signal or signals are up or elevated, or to approach nearer than the end of the bridge protection to any of said bridges, at such times as that the same may be injured or damaged, or while the said bridges, or any of them, may be opening or closing.” The testimony was taken in open court before the district' judge, who pronounced for the libelant against both of the respondents, dividing the damages between them. From this decree the City of Chicago appeals in the first case, asserting that it ought not to be held responsible for the damage; and the Dunham Towing and Wrecking Company in the second case, by cross appeal, asks for a review of the decree; claiming that it was blameless, and that the fault was attributable wholly to the city of Chicago.