Bell Telephone Co. v. Dravo Corp. , 371 Pa. 98 ( 1952 )

Dissenting Opinion by

Mr. Justice Musmanno:

The evidence of the negligence of the defendant company in this case amounts to moral certitude. Extensive estates have changed ownership, vast monopolies have been liquidated, far-reaching injunctions have issued and men have been hanged on evidence less convincing than that which. established in the case at bar that the one thousand horsepower towboat, known as the “Freedom” struck and seriously .damaged the underwater cable, of the Bell,Telephone. Company at the Coraopolis crossing, of the'.,Ohio.River, on June. 9, 1948;........... ''.....'.......'

The cable (which is three inches in diameter and contains 208 pairs of wire,) was laid in 1922 in accordance with specifications of United States Army engineers. Imbedded in a trench three feet below the bed of the river, it functioned faultlessly for twenty-six years. On the afternoon of June 9, 1948, a heavy rumbling and scraping noise was heard in the vicinity of the cable crossing, the surface of the stream broke into muddied violent churning, the turbulent water overturned a rowboat, threatened the dock offshore and tore a seaplane base loose from its moorings. At this very moment the “Freedom” was operating and maneuvering over the site of the cable. No other craft was in the vicinity or even within view on the river. When the cable was hoisted to the surface it revealed an “indentation” at a point 66 feet from the shore which marked the area where the “Freedom” with a tow of six barges had been operating at the time of the noted agitation in the river. The draft of the “Freedom” when loaded was 7 feet 9 inches, and at the time the cable failed the vessel was operating at that point where the cable was only 7 feet below the surface of the water.

If all the properties and forces taking part in this episode had been enclosed within a sealed cofferdam, the exclusion of outside factors or possibilities could not have been better controlled. How, then, can the Majority Opinion assert that the facts do not show that it was only the “Freedom” which struck the cable? If we accept the integrity of Nature’s laws and the scientific constancy of physics revealed through unquestioned circumstances, we are drawn impellingly to the inevitable conclusion that the break in the telephone cable could only have occurred because of the submarine violence precipitated by the powerful kort nozzle propellers of the defendant’s vessel, since, it is repeated, there was no other craft on the river at the time and place of the accident.

The Ohio River at the Coraopolis crossing is a placid stream flowing between verdant banks, uninfluenced by currents, rapids, dikes or dams. In the absence of any evidence that the abrupt turbulence in the water was caused by some submarine monster, innate intelligence, sitting in the jury box of common sense, must declare the “Freedom” guilty of fouling the cable and inflicting the damages of which the plaintiff complains.

Had there been evidence of a gradual weakening of the service supplied by the cable, a theory of deterioration might have been argued, but all the evidence in the case points to violence and trauma occurring on one particular day at one particular moment. One witness testified that the cable was encased in a quarter of an inch steel mesh of such solidity that a sledge hammer blow would not make any mark on it. Yet when the cable came to light it revealed a “shiny indentation” and “considerable kinking,” items of damage and distortion which could have been produced only by the application of extraordinary force. What was this extraordinary force? Could it have been any thing other than the “Freedom” which was strenuously pushing and pulling six barges — one empty and five laden with sand and gravel — at the very spot the cable kinked?

Although termed a towboat, the “Freedom” is a vessel of handsome proportions, being 116 feet long with a beam of 27 feet, and draft, as above indicated, of 7 feet aft and 6 to 7 feet forward. Two of the barges which were being towed were 135 feet long and two were 175 feet long, with beams of 26 feet and drafts of from 6y2 to 8y2 feet.

The staff captain of the “Freedom” was not on duty on June 9, 1948, but the “swing pilot” in charge knew of the cable crossing, the presence of which, aside from general river and navigational knowledge, was proclaimed by a huge sign on the Coraopolis shore.

There is not one link missing in the chain of evidence which ties the “Freedom” to the cable breakage as securely as an anchor chain holds a ship in the harbor.

The jury in this case, after listening to evidence for four or five days in a trial conducted by able and experienced counsel and presided over by the distinguished and veteran jurist Judge William H. Mc-Naugher, who delivered a most illuminating charge on the issue of fact involved, returned a verdict for the plaintiff. I do not believe that we should substitute our judgment for that of the jury, in the absence of any indication (as indeed the record shows none) that the jury went astray.

The proposition, mentioned in the Majority Opinion, that other boats may have caused a displacement of the cable, was presented to the jury as part of the defendant’s case, but the jury found against that theory.

The reasoning which would defeat the plaintiff’s verdict, fairly and squarely won in the assizes, is a reasoning which would upset any decision because it uses theory for facts and supposition for logic. The river of conjecture flowing on to the sea of presumption can carry on its boundless bosom fleets of hypotheses and armadas of surmise, but they will never reach the port of reality and never sail into the harbor of objective revelation.

To wipe out the promontory of fact in this case and substitute for it the mirage of speculation is to deny the plaintiff company of its constitutional right of trial by jury. The Majority Opinion would make the Court in this case a super trier of facts. It looks at all the facts and says there should be other facts; it considers all the inferences and says there should be other inferences; it weighs the probabilities and says there must be more possibilities. By this decision the Majority Opinion gives to the culprit craft a latitude of mischief never intended in its name.

June 5, 1952:

Not only in the interests of justice but in appreciation of the very reassuring laws of cause and effect which impart order and stability to this whirling world of awesome phenomena, I would keep hands off a verdict which is intelligent, fair, honest and just; and I would affirm the judgment entered below by the learned Court of Common Pleas of Allegheny County.