{ "id": 8659746, "name": "J. H. TOWNSEND et als. v. McLEAN CONSTRUCTION COMPANY et als.", "name_abbreviation": "Townsend v. McLean Construction Co.", "decision_date": "1912-09-11", "docket_number": "", "first_page": "503", "last_page": "507", "citations": [ { "type": "official", "cite": "159 N.C. 503" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "156 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270086 ], "opinion_index": -1, "case_paths": [ "/nc/156/0048-01" ] }, { "cite": "42 F., 506", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6735034 ], "opinion_index": 0, "case_paths": [ "/f/42/0506-01" ] }, { "cite": "148 U. S., 615", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3567203 ], "opinion_index": 0, "case_paths": [ "/us/148/0615-01" ] }, { "cite": "122 Fed., 555", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 1898405 ], "opinion_index": 0, "case_paths": [ "/f/122/0555-01" ] }, { "cite": "156 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270086 ], "opinion_index": 0, "case_paths": [ "/nc/156/0048-01" ] } ], "analysis": { "cardinality": 473, "char_count": 8055, "ocr_confidence": 0.463, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20768720492970827 }, "sha256": "959678ca1f37f2ea24d1ff9a990c09433359b6d755f223b9c0c400ac82d5fc2b", "simhash": "1:24b2ae19b04976a7", "word_count": 1400 }, "last_updated": "2023-07-14T20:13:45.962633+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. H. TOWNSEND et als. v. McLEAN CONSTRUCTION COMPANY et als." ], "opinions": [ { "text": "Brown, J.\nThis action is brought to recover damages against tbe defendant construction, company for an injury to tbe defendants\u2019 vessel, a three-masted schooner called tbe \u201cEdna A. Pogue,\u201d while attempting to pass through an opening in the bridge across Albemarle Sound, en route from Elizabeth City to Plymouth for a cargo.\nThere are * several assignments of error contained in the record, but we deem it unnecessary to consider more than one or two. Tbe defendants request tbe court to instruct tbe jury that if they believe tbe .evidence they should answer tbe first issue \u201cNo.\u201d This prayer for instruction, we think, was properly refused.\nAt tbe time of tbe injury to tbe \u201cEdna Pogue,\u201d tbe defendant company was engaged in constructing a bridge across Albe-marle Sound for tbe Norfolk Southern Eailway Company. While they bad tbe right to construct this bridge under tbe authority of tbe State, as well as tbe War Department, it was tbe duty of tbe defendants to leave\" open a space sufficient to enable passing vessels to go through. This tbe evidence shows that tbe defendants\u2019 agents in charge of tbe work undertook to do.\nTbe evidence shows that on 12 December tbe \u201cPogue\u201d sailed up to within three-quarters of a mile of tbe bridge and anchored to wait for a favorable breeze. It is common knowledge to all who are familiar with sailing craft that it is impracticable to \u201cbeat them\u201d against a bead-wind through an opening in a bridge.\nTbe evidence shows that at half-past 2 o\u2019clock on tbe following morning, the wind having arisen, tbe ' captain weighed anchor and got under way up tbe sound. Tbe evidence shows that at tbe time that tbe regular drawbridges intended for tbe passage of vessels, one on one side of tbe sound and one on tbe other, bad not been completed and were not in use for tbe passage of vessels.\nTbe evidence further shows that tbe open space through which tbe master of tbe \u201cPogue\u201d attempted to sail her was in use with tbe knowledge and permission of tbe defendants\u2019 agents for tbe passage of craft going up and down tbe sound.\nTbe captain testifies that be saw a large tugboat with large raft, and a number of other vessels, passing through this same opening, and that there was a light put there for tbe purpose of indicating that it was intended to be used for tbe passage of vessels.\nIn attempting to make tbe passage through tbe bridge, tbe vessel came in contact with a raft of piling material which bad been tied by tbe c\u00f3nstructors of tbe bridge to tbe east side of it, and.to the south side of the gap, by a rope made fast to one end of the raft of piling, leaving the .other end of the raft loose, so that it had swung around into the opening and the vessel had come in contact with it, causing her to lose her headway, whereby she fell off to the leeward, and her rigging became entangled with the pile-driver, which had been left on the north end of this opening, and the vessel was very greatly injured. The evidence shows that the wind increased very much at the time, so that the captain was unable to free his vessel and get her away from the bridge, and a large sea making up in the morning, she was badly chafed before she could get away. ,\nThe testimony of one of the-witnesses, who was an employee of the defendants at the time, was to the effect that this gap or opening was being used by all the craft going up and down the sound while the drawbridges were being completed.\nIt scarcely needs the citation of authority to prove that, .although the right to build this bridge cannot be gainsaid, it was nevertheless the duty of the constructors to do the work in a safe and careful manner; to leave open during the constructive period spaces amply sufficient for the safe passage of vessels navigating the waters of Albemarle Sound; and to keep those spaces free from all obstructions that would endanger the passage of vessels through such spaces.\nThere are numbers of cases which support the contention of the plaintiffs in this ease. Jutte v. Bridge Co., 21 Ohio C. R., 422; Maxon v. R. R., 122 Fed., 555; Kelly Line Co. v. Cleveland, 144 Fed. In this case it is said that a company constructing a bridge is liable for injury resulting from its negligence when a vessel collides with the partly constructed bridge, or with works used in the construction when such collision could have been avoided by reasonable precaution upon the part of the constructors. See, also, 29 Cyc., 214. Jutte v. Keystone Bridge Co., 146 Pa. State Reports, 400; Casement v. Brown, 148 U. S., 615; Wilson v. Chicago, 42 F., 506.\nAt a prior term of this Court we considered the case Whitehurst v. R. R., 156 N. C., 48. We 'think it has no bearing whatever upon this controversy. There was no evidence of negligence whatever upon the part of the defendant in that case, as it was perfectly manifest that the vessel was lost before she ever reached the bridge by failing to respond to her helm at a critical moment.\nThe defendants except because the court permitted witnesses to testify to the meaning of certain lights and what such lights are intended to communicate in nautical terms. It is true that these are fixed by the rules and\" regulations of the National Government, but they are not known \u2022 to jurors, but only to navigators and persons familiar with nautical regulations.\nIt was entirely competent to prove by witnesses the meaning of such terms and what certain kinds of lights were intended to indicate.\nWe have examined the charge of the judge, and deem it unnecessary to comment upon the exceptions relating to that.. The charge was eminently clear and fair, and presented the matter to the jury fully and completely, with conspicuous impartiality.\nUpon a review of the whole record, we find\nNo error.\nThe motion to nonsuit is covered by the ruling on the prayer for instruction, and is therefore overruled.", "type": "majority", "author": "Brown, J." } ], "attorneys": [ "Thomas J. Markham and E. F. Aydlett for plaintiffs.", "Bond & Bond and Pruden & Pruden for defendants." ], "corrections": "", "head_matter": "J. H. TOWNSEND et als. v. McLEAN CONSTRUCTION COMPANY et als.\n(Filed 11 September, 1912.)\n1. Navigable Waters \u2014 Bridges\u2014Construction\u2014Open Spaces \u2014 Passing Vessels \u2014 Obstructions\u2014Negligence.\nWhile constructing a bridge over navigable waters, in this case across Albemarle Sound, under the authority of the State and War Department, it is the duty of the builder to have open space sufficient to enable passing vessels to go through, and to keep those spaces free from all obstructions that would endanger them.\n2. Same \u2014 Questions for Jury.\nWhen the evidence tends to show that the builder of a bridge .across navigable waters had left an opening for the passage of vessels, and that the plaintiff\u2019s vessel was injured while attempting to pass through this opening by coming in contact with a raft of piling material swinging out into the opening, and which had been fastened by a rope to' the side of the bridge, it is sufficient, in an action for damages to the vessel, to be submitted to the jury upon the question of defendant\u2019s negligence. White-hurst v. R. R., 156 N. C., 48, cited and distinguished.\n3. Evidence \u2014 Nautical Terms \u2014 Explanation.\nIt is competent for witnesses to testify to the meaning of certain lights and what such lights are intended to communicate in nautical terms to vessels passing on navigable waters when it is material and relevant to the inquiry; though the meaning is fixed by rules and regulations of the National Government, it is not ordinarily known to the jurors.\nAppeal by defendant from Bragaw, J., at June Special Term, 1912, of PasquotaNK.\nCivil action.\nTbe following issues were submitted to tbe jury:\nFirst. Was plaintiff\u2019s vessel injured by tbe negligence of tbe defendants, as alleged? Answer: Yes.\nSecond. Did tbe plaintiffs by tbeir own negligence contribute to tbeir injury? Answer: No.\nThird. What damage, if any, have plaintiffs sustained? Answer: $500.\nFourth. Was tbe property of E. S. Neal injured by tbe neg-, ligence of plaintiff Townsend, as alleged in answer? Answer: .\nFifth. What damage has defendant R. S. Neal sustained thereby? Answer: .\nThomas J. Markham and E. F. Aydlett for plaintiffs.\nBond & Bond and Pruden & Pruden for defendants." }, "file_name": "0503-01", "first_page_order": 553, "last_page_order": 557 }