Oakland Barge & Lighter Co. v. Foster

LENNON, P. J.

Briefly stated, the complaint in this action of claim and delivery alleged that the plaintiff had leased to the defendant a barge of the value of sixteen hundred dollars at a rental of seventy-five dollars per month; that the defendant refused to .pay the second month’s rent, and refused and failed upon demand to return the barge to plaintiff. The defendant in his answer admitted that he had failed to return the barge to plaintiff; but pleaded as a defense to the action that he was prevented from doing so because the

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barge, while in use upon San Francisco Bay, was driven ashore and wrecked as the result of a sudden, unusual, and extraordinary storm. In this behalf the answer of the defendant further alleged in effect that at the time of the hiring it was understood and agreed that the barge would be used for the purpose of transporting gravel from Napa Creek to the city and county of San Francisco, and would be subject to all of the risks incident to such voyage, and that, at the time of its loss, the barge was loaded with gravel, and being towed by agents of the defendant in a proper and careful manner, and that everything that human skill and agency could do to prevent such loss was done by the defendant.

The trial court, among other things, found the facts surrounding the loss of the barge to be as alleged in the answer of the defendant; and as a conclusion of law therefrom declared that the plaintiff was not entitled to judgment. Judgment was accordingly rendered for the defendant, from which and from an order denying a new trial the plaintiff has appealed.

The principal point presented for a reversal involves the sufficiency of the evidence to support the trial court’s finding of fact that, at the time of the loss of the barge, “she was being operated in a careful and proper manner by defendant, and everything that human skill and agency could do to prevent such loss was done by the defendant, and the said loss was entirely without his fault, but was occasioned by causes beyond human control.”

This finding, we think, is sufficiently supported by the evidence adduced in support of the defendant’s case, which in substance is as follows: The plaintiff knew that the barge was hired and would be used for the purpose of transporting gravel from Napa Creek to the city of San Francisco. The barge was being used solely for that purpose at the time of its loss. The barge left Napa Creek loaded with gravel in tow of the tow-boat ‘‘ Anacapa. ’’ The crew of the ‘‘ Anacapa’ ’ consisted of the master, one man, the engineer, a licensed pilot, and two boys about eighteen or twenty years old. Her engines were in perfect working order, and she was properly and fully equipped and found for the work in which she was engaged. At the start the weather was good, and the “Anacapa” with the barge in tow proceeded as far as Point Pinole, where the anchor was dropped. When the tide turned,