Appeal, No. 58, March T., 1952, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 1166, in case of The Bell Telephone Company of Pennsylvania v. Dravo Corporation. Judgment reversed.
John R. Bredin, with him Dalzell, McFall, Pringle & Bredin, for appellant.
Ella Graubart, with her Patterson, Crawford, Arensberg & Dunn, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
A submarine cable running under the Ohio River and belonging to The Bell Telephone Company of Pennsylvania, plaintiff, failed, making necessary extensive repairs costing $4,971.23. Plaintiff brought this suit in trespass against Dravo Corporation, defendant, alleging that the failure had been caused by one of its tow boats striking the cable. The jury returned a verdict for plaintiff for the total cost of the repairs and from a judgment on the verdict, defendant has appealed, assigning as error the refusal to grant a judgment n.o.v.
In 1922, plaintiff was granted a permit by the District United States Engineers to lay a submarine cable in a trench three feet beneath the bed of the Ohio River between Coraopolis and Hayesville. The cable was installed in compliance with that permit and was in continuous operation thereafter without disruption until the afternoon of June 9, 1948. When the failure occurred on that date, plaintiff immediately began raising the cable to determine the exact place of failure and its cause. At a point 66 feet from the Coraopolis shoreline a sharp indentation was found in the cable. The trouble spot was found 77 feet further out at a splice in the cable. At the time the stoppage occurred the towboat "Freedom", owned by defendant, with four
barges attached, was maneuvering close to shore in the vicinity of the cable crossing. It is plaintiff's theory, and the jury so found, that defendant's boat struck the cable at the place where the indentation appeared causing a break at the splice which admittedly was the weakest point.
Plaintiff produced the following evidence which tends to support that conclusion: The indentation in the cable 66 feet from the Coraopolis shore was obviously caused by the exercise of a strong force on the cable. The steel protective covering on the cable was bright and shiny at that point, whereas the rest of the cable was dull and rested, indicating that the mark was of recent origin. At the time of the break in telephone service, defendant's boat was operating 50 to 75 feet from shore as it rearranged its tow after leaving a barge at a nearby dock. Two witnesses testified that they heard a rumbling or scraping noise when the boat was in that area and that the water to the stern of the boat was muddier than usual. There was further testimony that a small seaplane base nearby was broken loose from its moorings and a rowboat overturned.
The towboat was equipped with a kort nozzle which is a tube or casing that houses the propeller and is so designed to give the boat greater thrust. Plaintiff produced an expert witness who stated that if the cable were exposed on the river bed for a distance of at least ten feet and the kort nozzle passed within a foot and a half of the cable, it would be capable of lifting the cable into a position where it could be struck by the bottom of the boat. Plaintiff also produced evidence that the boat had a draft of seven feet, nine inches, and ...