192 F. 229 | D. Mass. | 1911
These libels are brought to recover damages alleged to have been sustained by reason of the negligence of the driver of a team belonging to C. J. Miers & Son, in loading a barrel of tar which rolled off the wharf upon the schooner’s deck, striking and injuring the libelant. Capt. Bellatty, the libelant, was the master in charge of the schooner Nellie Grant, lying at the Gas House Wharf in the port of Boston, below Charlestown Bridge, taking on a general cargo. The schooner was partly loaded with cement in the hold, and on April 10, 1911, was taking on a number of barrels of tar which were being shipped upon her by the Barrett Manufacturing Company. The schooner was a two-masted vessel of about 139 tons, lying with her port side to the wharf and with her deck some 10 or 12 feet below the caplog of the wharf. On hoard the schooner
The surface of the wharf was of smooth, hard earth, with no projection to stop the barrel from rolling, except a plank about two inches thick at the edge. The slope was gradual from the cart toward .the water. Only one man, Fitz, was on the team unloading. There was no one at the foot of the skid to receive the barrels as they, came down. Cook, one of the schooner’s crew, was on the wharf, and had helped in receiving the first two barrels. He had then taken those barrels and proceeded to hook them on and lower them to the vessel. He was standing back to the team, 25 feet from it, at the time of the injury.
1. From all the testimony, the court has no hesitation in concluding that negligence has been shown on the part of Fitz, the driver of the team, who undertook to unload the barrels of tar. Having heard all the testimony, and carefully examined the record, I am clearly of the opinion that the teamster was negligent in rolling the barrel down, or allowing it to roll down, instead of sliding it off upon the skid as he had been accustomed to do; and as was the usual way of unloading. The teamster was in charge of the cart, with a load of heavy barrels, backed up within 30 feet of the edge of the wharf, with a smooth
3. Was the libelant in fault? It is urged by the respondent that the libelant was guilty of contributory negligence. While the case was on trial, I thought it presented a close question upon this point. If it should be found to be any part of the duty of Thornton E. Cook, the seaman upon the wharf, to help unload the barrels of tar from the vragon, then the evidence might tend to show that Cook was not in the exercise of his duty; and his negligence would be the negligence of the libelant, the captain of the schooner, inasmuch as the master was sailing the. schooner on shares, and was liable for the acts of the seamen, they being his employés. After a careful examination, the whole evidence convinces me that Cook’s duties were to hook the barrels on, and assist in lowering them; that, at the time of the injury, 42 barrels had been unloaded upon the ship; that it was no part of his duty to help unload the Wagon; and that he was never instructed by his employer to receive the barrels from the teams, or to guide them on their way down the wharf. The delivery was made, not upon the team, but upon the wharf. The duty of the respondent Miers & Son, and of their agent, did not cease until the goods were landed upon the wharf. Forty-two barrels had already been brought,landed, and lowered in safety. The testimony tends to show tfyat they were all unloaded in the same way, without any assistance from Cook. When the team first arrived, Cook voluntarily helped the teamster to unload two of the barrels. These he took to the edge of the wharf, in order to start his loading. After that he kept on lowering- the barrels without paying any attention to their unloading from the cart. After a careful study of the case, I am satisfied that Cook was not guilty of contributory negligence, and that the libelant was not at fault. The duty of exercising due care on the part of the libelant, under the circumstances of the case, did not require him to aiiticipate the negligence of the teamster. I am satisfied, upon the whole, tlrat there was nothing in the case which called upon the libelant to exercise more care than he did, that he was not in violation of any duty, and should not be held to have been in fault.
It is unnecessary to state all the evidence upon the question of damages. After a careful consideration of this evidence, I assess the damages at $3,100. A decree may be drawn dismissing the libel against the Barrett Manufacturing Company, with costs for the respondent. A decree may also be drawn for the libelant against the respondent C. J. Miers & Son, assessing damages for the sum of $3,100, with costs for the libelant.