#### Fugina and another, Appellants, vs. Chicago & Northwestern Railway Company, Respondent.

*January 14*

March *15, 1910.*

*Navigable waters: Opening of drawbridges: 'Negligence: Rules of War-Department: Publication: Evidence: Custom.*

1. The rules and regulations concerning the opening of drawbridges, authorized to .be made by the secretary of war under the River and Harbor Act of August *18,*1894, and required to be published in order to have the force of law, cannot be held, as a matter of law, to have been published, upon evidence of mere-delivery to a government officer of a limited number of copies with instructions to deliver them to the commanding officers of vessels touching at a certain port, when it affirmatively appears that neither the captain of the vessel in question nor other captains plying those waters had any notice of such rules.

*1452. In the absence of publication of rules and regulations of the War Department bearing upon the' subject, it is competent to prove . a custom, existing for seven years, to the effect that an approaching boat blew its whistle only when a drawbridge was closed, as a signal to open it, but not when the bridge was already open.

Marshall, J., dissents.

Appeal from a judgment of the circuit court for Buffalo county: E. W. Helks, Circuit Judge.

*Reversed.*

This action was brought to recover damages for injuries to appellants’ steamboat caused by. the swinging against it of the draw span in respondent’s bridge across the Mississippi river at Winona, Minnesota. It is alleged in the complaint that while the boat was passing through the open draw respondent negligently swung the draw span against the boat. The answer admits ownership and operation of the bridge by respondent, denies negligence, and alleges that the injury was caused by the negligence of the appellants. After the evidence was in, the court directed a verdict in favor of the respondent. After denial of a motion for a new trial, judgment was entered in favor of the respondent, from which this appeal was taken.

For the appellants there was a brief by *M. L. Fugina*and *Webber & Lees,*and oral argument by *Mr. E. L. Lees*and *Mr. Fugina.*

*William G. Wheeler,*for the respondent.

The following opinion was filed March 15, 1910:

KeuwiN, J.

The errors assigned may be classified under three heads: (1) in directing a verdict for defendant; (2) in excluding evidence offered by appellants; and (3) in refusing a new trial.

The evidence tends to prove that on September 8, 1908, the appellants’ steamboat E. Rutledge, under the command of Wm. H. Wier, a duly licensed master and pilot on the Mississippi river, reached Winona at 2 p. m. and landed at *146the public levee on *the*south bank of the river. The river at this point runs east and is spanned west of the levee by two bridges, one a high wagon bridge, the other the respondent’s railway bridge, which is a drawbridge, the draw being located on the south, or Minnesota side of the river. There are two channels through the di’aw, one on either side of the pivot pier on which the draw span revolves. On the north side of the south channel there is a pier 360 feet long which is built of piling driven into the river, forming a long box filled with stone and extending longitudinally up and down the river, in the center of which is the pivot pier upon which the draw span swings. The channel on each side of the pier is about 150 feet wide. .When the Rutledge landed at the levee a steamboat called the La Crosse was lying about 300 feet below. The Rutledge started up river to Fountain City, but shortly before leaving the levee the La Crosse blew her whistle as a signal to open the draw, which was then closed, but which immediately opened to its full width, and was so open when the Rutledge and La Crosse proceeded up stream. The La Crosse pulled out first and was immediately followed by the Rutledge, the two boats being about 200 feet apart as they went into the draw with the La Crosse in the lead, both boats taking the south channel through the draw. Before the La Crosse had cleared the draw the master of the Rutledge observed the draw span swinging off the pier toward his boat. At this time his boat was about seventy-five feet below the pier and running at about nine miles an hour. Immediately upon observing the movement of the draw span signals were given to stop the boat and reverse the motion of her wheel, thereby reducing the speed to about three miles an hour; but before she could be stopped the bridge struck her on the right-hand side, knocking down the smokestacks and pilot house and causing, other injury. When the draw first began to swing the stem of the La Crosse was about opposite the pivot pier, the La Crosse then being about half way *147through the draw. No warning signal was given by blowing the whistle on the engine house on the draw. About thirty feet in length of the Rutledge had passed the bridge before the collision. The collision occurred about 3 p. m. of a perfectly clear, bright day. From the time the Rutledge left the levee until the collision the engine house on the draw span was in plain sight. No signal was given by the engineer on the draw when the draw span began to swing.

The defendant put in evidence see. 5 of the River and Harbor Act of August 18, 1894 (ch. 299, 28 U. S. Stats, at Large, 362, U. S. Comp. Stats. 1901, p. 3538), which provides for the opening of drawbridges across navigable rivers of the United States and authorizes the secretary of war to make such rules as in his opinion public interests require, and further provides that when such rules and regulations are made and published they shall have the force of law. Also regulations 1 and 2, passed in pursuance thereof, as follows, were offered:

> “1. Whenever a steamboat is to be passed through the channel at any drawbridge, the officer or person in charge thereof shall cause to be sounded, when said boat shall be at a distance not less than one half mile, but within signaling distance from said bridge, one long blast of a steam whistle.

> “2. When a steamboat is to leave a landing one half mile or less from a drawbridge, with the intention to pass through the bridge draw, the officer or person in charge of said steamboat shall cause to be sounded the required signal, a sufficient time before leaving the landing to allow the bridge to be opened in time.”

These rules were made by the secretary of war May 31, 1901. No proof was made of the publication of these rules or regulations except that some twenty copies were sent to the United States engineer in charge of improvements on the Mississippi river from Winona to the mouth of the Wisconsin river with instructions to give them to the commanding officers of every vessel that touched at La Crosse, and that *148be distributed these copies to different boats, but tbat be bad no recollection of delivering a copy to Capt. Wier of the-Rutledge or posting a copy on tbe Rutledge, and tbat the-Rutledge entered tbe upper waters of tbe Mississippi before-1901. Captains De Mars, Wier, Cassidy, and Fugina, all running boats on tbe upper Mississippi since 1901, testified tbat they never saw nor received tbe rules or regulations referred to. It also appears from tbe .evidence tbat tbe following pilot rules governing pilots on tbe Mississippi river were in force at tbe time of tbe accident, viz.:

> “Rule 12. In obeying and construing these rules due regard shall be bad to all dangers of navigation and collision,, and to any special circumstances- which may render a departure from tbe above rules necessary in order to avoid immediate danger.”

Also the amended pilot rule, adopted January, 1907: “Unnecessary sounding of tbe steam whistle is prohibited within any harbor limits of tbe United States.” Tbe foregoing rules were offered in evidence by appellants and excluded. Tbe appellants also offered to prove tbat no copy of tbe rules- or regulations was posted on tbe Rutledge or on any other steamboat upon which tbe witness bad been since May 31, 1901, which evidence was excluded. Tbe court below seems to have rested its opinion in direction of a verdict upon tbe idea that the respondent bad tbe right to rely upon tbe regulations respecting the opening of drawbridges, hence in the-absence o-f a signal by the Rutledge was under no duty of observation as to whether the Rutledge was approaching, and that tbe appellants bad no right to run their boat up river assuming that the draw would be left open. This proposition, of course, is based upon tbe assumption that the rules were regularly published, because, until they were, they had no force under the act of Congress heretofore referred to, which provides that “such rules and regulations, when so made and published, shall have the force of law.” So we at. *149•once approach the question of whether the evidence was sufficient to establish as a matter of law the publication of the rules and regulations upon which the respondent relies. The act clearly contemplates a publication, and no attempt to prove publication was made, except as before stated, and there is evidence that neither the appellants nor the captain in charge ever received a copy or had any notice of the rules. There is also evidence that other captains on the river never saw or received the rules.

Counsel for appellants calls our attention to sec. 4405, R. S. of U. S. (U. S. Comp. Stats. 1901, p. 3017) and the following rule made in pursuance thereof:

> “Each master and pilot of steam vessels wherever employed shall when receiving his license, either original or renewal, be furnished with a pamphlet copy of the rules and regulations governing pilots, and of the statutes upon which such rules are made applicable upon the waters in which their licenses are intended to be used as stated in the body thereof.”

Also to sec. 4412, R. S. of U. S. (U. S. Comp. Stats. 1901, p. 3020), providing that two copies of passing rules to be observed by vessels shall be furnished to each vessel and be kept posted in a conspicuous place thereon, and says that rules 1 and 2, hereinbefore referred to, are designed to gov-urn the action of pilots on steam vessels as well as bridge tenders on drawbridges, and that in order that these rules be published to pilots and masters they should be furnished to them in the same manner as other government rules which describe their duties in navigating public waters. Our attention has also been called to the United States statutes which limit captains’ licenses to five years, and provide for renewal, and it is argued that this, in connection with the rule that a ■copy of rules shall be furnished at time of issue of license or renewal, and the fact that the captain of the Rutledge was on •this river from 1901, show he must have had either original *150or renewal license, and should have known of rules and bare received 'them if in .existence or published. We have been cited to no authority, and are aware of none, which makes the mere delivery to the government officer in charge, as was done in this case, of a limited number of copies of the rules with instructions to deliver them to the commanding officers of vessels touching at La Crosse, a publication within the meaning of the act of Congress, which requires rules to be made and published. So we aye therefore of the opinion that on such proof as the record here presents it cannot be said as matter of law that there was a publication of the rules, when it affirmatively appears that neither the captain of the Rutledge nor other captains, plying the river had any notice of such rules; but we make this ruling without prejudice to the respondent’s right to litigate and have determined upon another trial the question as to whether there was a publication of the rules.

The appellants further offered to prove that there was a custom existing upon the river for a period, of seven years before the accident to the effect that, when a bridge was open, the approaching boat did not blow its whistle, and only blew it when the bridge was closed as a signal to open it. The contention on the part of the appellants is that it was competent to show this custom, especially since the rules had not been published and were not known or acted upon, and further, that the rules are ambiguous, and that the ambiguity is as to whether or not the whistle should be blown only when the bridge is closed. Rule 2 heretofore recited is the one bearing upon the case in hand and requires the signal to be sounded “a sufficient time before leaving the landing to allow the bridge to be opened in time,” and pilot rule No. 12 heretofore quoted and the amendment thereto adopted in January, 1901. But from the view we take of the case it is unnecessary to decide, and we do not decide, whether the rules are ambiguous, but rest the disposition of the case upon *151the competency of the evidence of custom in view of the fact that sufficient evidence was not offered to establish as matter of law publication of the rales. Whether such evidence of custom would be admissible in case publication were established we need not and do not determine. It is clear, in the absence of publication of the rales so as to be binding upon the appellants, that the question of defendant’s negligence as well as the plaintiffs’ contributory negligence were questions for the jury, and the court, therefore, was in error in directing a verdict. It follows that a new trial should have been granted.

*By the Court.*— The judgment of the court below is reversed, and the cause remanded for a new trial.

The following opinion was filed April 8, 1910:

Maeshall, J.

(¿¡assenting). I understand the court decides1 there was not sufficient proof of publication of the rale alleged to have been violated, to render it valid as a matter of law, and, on that account, the cause was improperly taken from the jury. That is, if at the time of the accident the rale was in force requiring the bridge tender to be signaled by the person in charge of any boat desiring to pass through the draw, when the boat is at least one half mile away, then actionable negligence was not established.

There is no question but what the rale was made and copies sent to the proper local officers for distribution, nor but what that occurred some eight years before the accident, nor but what the rale had been customarily, at least, observed. It was obeyed by the person in charge of the boat which preceded the Rutledge. There is no question but what, if the rale had been published, it had the force of law just the same as if incorporated into an act of Congress, and was as binding on those who actually knew of it as those who did not.

I cannot understand the significance of the observations *152in tbe opinion, that tbe captain of tbe Rutledge and some other captains did not know of tbe rule and that it was not posted up on tbe boat. It seems sucb observations, if intended to indicate that tbe rule, if published at all, was not law as regards those who did not have actual knowledge thereof, or that evidence that some did not have knowledge of tbe same, was proof, negative of publication, they are erroneous and, in any event, misleading. Truly, tbe effect of publication must be tbe same in this case as in any other where an enactment depends upon sucb a circumstance for validity. It would not be thought, for a moment, that one could raise a controversy as to whether an act of the legislature had been efficiently published by proving that many persons intended to be affected thereby had never seen or heard of it. Neither would it be thought, in case of a legislative enactment being enforceable as to one person, it would not be as to another, or that knowledge of either would have any bearing on the question. I do not see why the rule, which, contingent upon publication, was a law, stands upon any different basis than any other law, or how the evidence, given so much significance to exempt the captain of the Rutledge from conforming to the rule, had any relevancy.

Can it be that whether a rule, designed to have the force of law upon the navigable waters of the country, is effective or not, depends upon whether the local officers of the United States in close touch with river pilots and charged with administrative duties in respect to navigable waters, do their duty as regards delivering copies to the pilots, or the proprietors of boats do their duty as to posting up rules thereon ? If so, a very confused situation exists. In the circumstances of this case, what might be actionable negligence as to one bridge tender might not as to another, and what might be actionable negligence as to one boat might not as to another. So each bridge tender would have to shape his course, at all times, as if no such rule existed, since it would be impossible for him to know whether a pilot was under the law or not.

*153Again, can it be that failure to post np regulation rules on •a boat, as required by law, which would necessarily be the failure of the proprietor or bis agent, or both, or tbe failure of tbe pilot to obtain a copy of tbe rules, wbicb it was bis duty to do, can affect tbeir efficiency as to bim ? These and other considerations occur to my mind as reasons why tbe decision is wrong.

Tbe act of Congress did not prescribe any method for publishing tbe rules. There is no general federal act on the ■question. Tbe law in providing that tbe rules shall, when published, have tbe force of law, under tbe circumstances leaves it to tbe discretion of tbe bead of the War Department to publish rules in any reasonable way be sees fit. He evidently adopted, in this case, tbe method of printing tbe rule and sending copies to tbe local administrative officers in touch with tbe boatmen affected,.expecting that such officers would use due diligence to bring tbe rule to tbe attention of pilots, and that each pilot would be diligent to discover all rules designed to govern bis conduct, and that be and bis employer would see that such rules were properly posted. Some such method of publication probably has been followed ever since we bad navigation rules in this country emanating from tbe War Department. No record is found anywhere of its having been held ineffective. It seems to me it is a reasonable, and, therefore, efficient method, and that neither negligence of the local officers nor tbe proprietor of a boat, ■nor tbe pilot in charge, has anything to do with whether tbe rule is or is not law.

In my opinion, tbe act of sending copies of tbe rules to tbe local officers with directions, express or implied, to bring the same to tbe attention of persons intended to be affected, was a sufficient publication in contemplation of tbe act of Congress. Moreover, in my opinion, after such a rule has been in existence for so long a time as eight years and has been in force, in contemplation of tbe War Department, for that period, as in this case, and is conformed to by the bridge *154tenders on the river, it should be presumed to have been duly published, especially so far as necessary to protect a bridge tender and his employer from liability for negligence. The burden of proof should not be cast upon the person who relies-upon the rule to prove publication, but on the one who challenges its validity to prove the contrary, otherwise the rule' is liable to be the law in one case and not in another, and in one jurisdiction and not in another. Such a situation as to the navigation laws would be very disastrous to persons and property.