Thomas Taylor of St. Louis, whose deposition was read to the jury on the fourth day of the trial, was the oldest pilot in terms of service then working on the Upper Mississippi, having passed the point where the Rock Island Bridge was erected at least five hundred times. Taylor testified that the bridge was “a very serious obstruction” to navigation, and he assured the jury that the reputation of Nathaniel Parker as a river pilot “cannot be surpassed.”5
The plaintiffs’ attorneys offered a series of witnesses who testified to the value of the Effie Afton and the property on board at the time of its loss. John G. Isham, a steamboat furnisher from Cincinnati, testified that the boat was worth at least $50,000. “I don’t think I would have taken $80,000 for her, had she been mine,” Isham added. “Her equipment was as perfect as I ever saw.”6 Daniel Weaver, a pilot from Cincinnati who had piloted the Afton on several of its early trips, thought the boat was worth between $50,000 and $65,000. “She was a first-class boat for freight and passengers,” Weaver said, “very light draft and easy to handle; a good boat for any stage of water.”7 Benjamin P. Hoomes, first clerk of the Afton, testified that the boat had fifty staterooms and that the property on board was worth at least $100,000. To support his claim, he produced a long list of items that were carried on the boat, with values stated for each.8
At one point, T. D. Lincoln offered the testimony of nine witnesses to show that the Rock Island Bridge had raised the costs of insurance for boats traveling on the Upper Mississippi. The defense attorneys vigorously objected to this testimony, and when McLean sustained their objection, T. D. Lincoln withdrew his offer.9
Orrin Smith was one of the most interesting of all the witnesses called by the plaintiffs. He had been involved in navigation of the Mississippi River for thirty-three years, and for seven or eight of those years he had been president of the Galena Packet Line, a fleet of commercial packet ships that regularly ran between Rock Island, Galena, and St. Paul. He had passed the site of the Rock Island Bridge many times and had a good knowledge of conditions there. Smith said that the difficulties of passing through the Rock Island Bridge would have been “very much lessened” if the bridge had not been constructed in swift water. To explain this point, he reviewed some of the difficulties that boats experienced when they came down the river. First, they had to negotiate the treacherous Rock Island Rapids that occupied some eighteen miles of the river above the bridge. Once the rapids were passed, they had to “run down hill” until they got “pretty close to the pier” of the Rock Island Bridge. “My impression has been that many of the accidents have been from a want of knowledge as to how far to get down before turning the boat,” Smith said. “We have a couple of boats passing twice each week day—one each up and down and they have gone through with comparatively little trouble. They are small boats, however.” (Smith’s reference to “comparatively little trouble” cannot have pleased the plaintiffs’ attorneys.) Smith added that some of his boats were “pretty large” and that he would consider it “somewhat hazardous if they had to pass through.” But when asked if his packet line had taken its largest boats through the bridge, Smith answered, “Yes, sir, and we got them through this spring without serious accident.”
Smith then offered a revealing bit of information that showed how boatmen on the Upper Mississippi were adjusting to the new bridge. They were not throwing up their hands in frustration and trusting in their lawyers to get the bridge torn down. They were adopting techniques that would enable them to navigate the river with a degree of safety. “The boats now run on the Mississippi in sections,” Smith said, “one class to Keokuk, another to Rock Island, another to Galena, and another of an entirely different class to St. Paul.” Smith spoke in some detail about the Rock Island Rapids and the chutes, or chains of rocks, that threatened steamboats there. “I have always considered these Rapids as a serious obstruction to navigation,” he said, “I never heard that controverted.” Smith then made some comments about the Rock Island Bridge itself: “I am not aware of any serious accidents to our boats in running through the draw; they may have injured their upper-works, but nothing more than is common in running a boat. I reside at Galena. The packets come in every day, and I see them. . . . Our boats have met with slight injuries, nothing more.”10
James Boyd’s testimony was more supportive of the plaintiffs’ case than Smith’s. He was a river captain who had been running boats on the western rivers since 1842. A former resident of Pittsburgh who had lived in St. Louis for about two years, Boyd had piloted his steamboat the Ben Bolt up the river to Rock Island in early May 1856 and tried several times to get it through the draw. When the boat sustained major damage, he gave up the attempt and brought the boat back to the Rock Island shore, then walked out on the bridge to study the water currents. He was on the span when the Effie Afton made its disastrous attempt to pass through the draw and saw it collide with the bridge. Boyd eventually sold the Ben Bolt, sustaining a considerable loss in doing so. He thought the bridge was a great danger to navigation on the river. “In my opinion,” he said, “it is so dangerous that I should hate to build a boat to run in that trade; nor would I have sold the Ben Bolt at the great sacrifice I did, but for it.”11
When Joseph Knox asked Boyd on cross-examination if he and the other steamboat captains blew their whistles when they saw the Rock Island Bridge was on fire, the plaintiffs objected. But McLean allowed the question. Boyd said he did not personally ring a bell or blow a whistle when the bridge took fire, “but when the bridge fell I blew one—a long and loud one. . . . So many were blowing and the bells were ringing so on the boats and in the town that I could not hear.”12
More than a dozen of the plaintiff’s witnesses were asked to estimate the speed of the river current as it passed through the draw of the bridge. It was an important part of the plaintiffs’ case to show that the bridge had greatly increased the speed in the draw and thereby increased the difficulty that boats experienced in passing through it. Boats going upriver had to fight the increased speed, while boats coming down had to contend with the instability caused by the swiftly flowing waters. The witnesses, however, offered an almost bewildering array of estimates. George McClintock thought the current flowed through the draw at “about eight or ten miles an hour.”13 James W. Connor thought the water was flowing through the draw at twelve miles an hour on the day the Tennessee Belle struck the bridge.14 Elias Owens, pilot of the J. B. Carson on the day the Afton was lost, set the speed at nine miles per hour, although he admitted that the speed varied at different stages of water.15 Joseph M. Kelly, a bookkeeper from Covington County, Kentucky, who was aboard the Afton when it collided with the bridge, thought the current was running between twelve and fifteen miles per hour at the time of the Afton’s collision,16 while Pliny A. Alford, a pilot from St. Louis, said “the current at high water is at least eight miles an hour, and in low water about five miles. It is most strong at high water.”17
The jurors cannot have escaped the force of the almost unanimous chorus of protest that the steamboat captains, pilots, engineers, and crew members raised in opposition to the bridge. They all seemed to agree that the bridge was an obstruction to navigation—a serious, even dangerous, obstruction. If the jurors listened carefully to the chorus, however, they might have heard an occasional discordant note. For example, John Jacobs, a St. Louis–based river pilot who said he thought the obstruction caused by the Rock Island Bridge was “the greatest on the Western rivers,” admitted that he had passed through the bridge forty or fifty times since it was built, and yet mentioned no difficulties when doing so.18 William White, a Galena-based river pilot who called the bridge “a very material obstruction to navigation,” admitted that he had passed through the draw a total of ten times—seven times in 1856 and three times in 1857—and that he “got on without injuring my boats materially.”19 George Krautz, the second engineer on the Effie Afton, who testified to the Afton’s disastrous collision with the Rock Island Bridge, admitted that he saw thre
e other boats pass through the draw of the same bridge before the Afton, and apparently without difficulty.20 Jesse T. Hurd, Jacob Hurd’s brother, himself an experienced steamboat captain, testified that the Rock Island Bridge was “a very serious place for a steamboat to pass,” yet he admitted that he had been through the bridge three times, once on the steamboat Granite State, which struck one of the short piers and tore off about thirty-two feet of its guards, and twice on the steamboat Galena. “Nothing happened to the Galena,” Hurd admitted. “We went through without material difficulty.”21 John Grammar, who testified to the accident suffered by his steamboat the Lucie May, admitted that he had passed through the bridge “a number of times,” but the only accident he witnessed was that of the Lucie May.22 Pliny Alford, whose experience on the Upper Mississippi went back to 1842, called the bridge “a decided obstruction” yet admitted that he had passed through the draw of the bridge about eight times and “never saw an accident.”23 Nathaniel Parker, the pilot in charge of the Effie Afton at the time of its disastrous collision with the bridge, told the jurors that he had passed through the bridge twice before he took the Afton in and about twelve times since, yet the only accident he testified about was that of the Afton.24 If the very location and design of the Rock Island Bridge caused steamboats to collide with it, how could so many boats make it through without colliding? Were other factors at play—negligence, perhaps? Lack of navigational experience on the part of some of the pilots? Adverse weather conditions? Defects in the boats themselves?
When George Collins, the assistant engineer of the Effie Afton, was called to the stand on the seventh day of the trial, he testified that when the Afton set out for the Rock Island Bridge on the morning of May 6, its machinery was “in complete order—as complete as it could be.” But Collins offered some testimony that seemed to contradict Nathaniel Parker’s claim that the Afton did not strike the long pier of the bridge. “I think the boat struck the larboard pier,” Collins said. “I know that by the jar of the boat.”
A rustle of excitement ran through the courtroom when Collins was asked a potentially explosive question: “Have you ever been offered a sum of money to swear that this boat was burned up purposely, and if so, when, where and by whom?” “A man came to me a year ago this spring,” Collins began, “while I was on the Royal Arch.” Before he could continue with his answer, the defendant’s attorneys interposed a vigorous objection. The question was improper, they said, unless it could be connected to one of the parties to the suit. It was immaterial if Collins was offered money for his testimony unless the plaintiffs could prove that the Railroad Bridge Company or any of its officers or attorneys were behind the offer. McLean sustained the objection over the plaintiffs’ attorneys protest that they would “prove that this man was introduced to the witness by a man who had been connected with the railroad and the bridge.” It was a weak protest, and a tenuous connection at best. In fact, the subject was never broached again.25
With Collins, the plaintiffs’ attorneys rested their case in chief. They had presented an impressive body of evidence and called, either to the stand or by way of depositions, an even more impressive array of witnesses. There were more than eighty witnesses in all, each contributing in some way to the case the plaintiffs’ attorneys were presenting to the jury. But where were the testimonies of Jacob Hurd, the captain of the Effie Afton, Alexander Kidwell, the chief engineer, and Joseph Smith, the chief clerk? Hurd, Kidwell, and Smith were, after all, the owners of the Afton. These three men knew a great deal about the boat and what had happened to it at the Rock Island Bridge. Yet they were never deposed, and they were never called to the stand in Judge McLean’s Chicago courtroom to tell the jury what they knew. The explanation for their absence was, of course, that they were deemed to be incompetent witnesses under the law that then governed the production of evidence. In later years, a trial seeking to recover for damages sustained by a valuable steamboat would prominently feature the steamboat’s owners as witnesses. Not so, however, in 1856, or for some years thereafter, for, as Simon Greenleaf, a professor of law at Harvard University, said in the 1850 edition of his Treatise on the Law of Evidence, “the general rule of the Common Law is, that a party to the record, in a civil suit, cannot be a witness, either for himself, or for a co-suitor in the cause.” Greenleaf said that this rule was “founded not solely in the consideration of interest, but partly also in the general expediency of avoiding the multiplication of temptations to perjury.”26 In other words, parties to the case would be likely to lie, or at least exaggerate, and because of this they would not be permitted even to take the stand. In 1847, the United States Supreme Court specifically endorsed this rule in an opinion written by Justice Samuel Nelson of New York (and agreed to by Justice John McLean of Ohio).27 So Hurd, Kidwell, and Smith did not take the stand in the Effie Afton case. They could not offer direct testimony, which might potentially have strengthened their suit. At the same time, however, they did not have to subject themselves to cross-examination, which might potentially have weakened it.28
Henry Binmore reviewed the developments of the first week of the trial in a special article for the St. Louis Missouri Republican. He thought his reporting had amounted to a “Herculean task” and told his readers that he had transcribed 96,280 words, which if stretched from end to end would extend for 1,872 yards, or more than a mile. He had already formed some opinions about the case and was not shy about expressing them. “The Rock Island Bridge being erected,” Binmore declared, “became an obstruction to navigation. There can be no question of that. No bridge can be erected but on its piers and, if piers it has, it will more or less impede the free navigation of the waters.” He thought the Bridge Company might have erected a suspension bridge, or made the draw wider, or placed the piers straighter, “or probably done a dozen things to decrease the risk of navigation. . . . To my mind it seems they ought to be liable because they have not taken care to avoid injuring the river and free intercourse upon it.”29
The pro-bridge Davenport Gazette had a different impression. The Gazette commented sarcastically that there was “some very pretty swearing going on” in Judge McLean’s Chicago courtroom. “One man swears that this bridge is a greater obstruction to navigation than the Falls at Louisville or the Mississippi Rapids! When we recollect that the Falls are not navigable on an average scarcely a month altogether the whole year, and that the Lower Rapids of this river are only really navigable for medium sized steamers at times of a high or good stage of water, and that to get around the one, millions of dollars have been expended to build a canal, and thousands to build a railroad around the other . . . it may be very safely surmised that there is no limit to the tip-top swearing now going on before the Chicago Court, among those opposed to this bridge.” The Gazette noted one witness who said that he had been up the river as far as Rock Island only two times since the bridge was built yet still claimed that “it is more chance than certainty to get through the draw. . . . And yet,” the Gazette continued, “there have been nearly eight hundred steamboat passages at the draw this season—and probably of the whole number not half a dozen boats, or a dozen at the utmost touched the piers even in the slightest manner! What remarkable chance, especially when the ‘obstruction’ is so dangerous! But we have only given these as specimens of the beautiful swearing having for its object the destruction of this magnificent bridge.”30
Binmore acknowledged that much of the evidence in the case was technical and confusing and that to listen to it day after day was “a mad, sick and serious job. . . . I see around me of an afternoon one or two jurors who are ‘nid, nod, noddin’,’ at times, and even the very worthy Judge who presides, occasionally shuts his eyes in an almost doze. My fellow reporters are getting sick of it, and I beg to inform you that I don’t care how soon it is over.”31
The Illinois Daily Journal, published in Springfield, ran a short article emphasizing the importance of the Chicago trial. The Journal was supportive of Abraham Lincoln and his
policies, and supportive of the railroads as well. It said that the lawsuit brought against the Rock Island Bridge “touched so nearly the question at issue between the railroads and the navigable rivers” that “it assumes a most momentous legal and national bearing. In this view, the case is one of the most important that has ever engaged the attention of our courts.”32
Though they viewed the trial from different angles, the St. Louis, Davenport, and Springfield papers all made perceptive observations about the trial then taking place in Chicago. Almost everybody recognized that it was one of the most consequential that had ever taken place in an American court. And it was not yet over. The plaintiffs had presented their case, but the defendants—aided by a plainspoken lawyer from Springfield with a remarkable memory and a keen sense of trial strategy—had yet to be heard.
TEN
The Bridge Itself on the Stand
Norman Judd opened the case for the defense on Tuesday morning, September 15, the seventh day of the trial. The conclusion of Nathaniel Parker’s lengthy testimony, followed by the much shorter testimony of George Collins, had occupied a good part of the morning session, and when Collins left the witness stand Judd was not ready to call his most important witnesses. He began instead by reading the deposition of William Phillips, a steamboat pilot from Portsmouth, Ohio, who had worked as steersman on the Effie Afton for five months in the spring of 1856.
Phillips reviewed some basic facts relating to the Afton: It was 230 feet long and had a beam of about 32 feet; at its widest point it measured about 40 feet from outside to outside; its wheels were 32 feet in diameter and 9 feet wide. Running upstream against a four-mile-per-hour current, it could attain a speed of about eight miles per hour; running downstream in the same current, it could do fifteen. Phillips thought the Afton was worth $50,000 but noted that the value of steamboats had risen “right smart” between the dates of the boat’s launching and its destruction.1
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 15