89 F. 646 | 8th Cir. | 1898
This action was brought by plaintiff in error, John R. Claus, to recover from the Northern Steamship Company damages for personal injuries caused the plaintiff by falling through an open hatchway on the steamer North Wind, a vessel owned by the defendant company. From the evidence in the case it appears that during the winter of 1895-96, the North Wind was laid up at the docks at West Superior, Wis., and in March of 1896, repairs were being made upon the vessel, preparatory to the opening of navigation, the American Steel Barge Company being in charge of the repairs to the decks and woodwork and the Superior Water, Light & Power Company of the repairs to the electric apparatus in use upon the boat. The plaintiff in error was in the employ of the latter company, and on the 13th day of March,. 1896, he went on the vessel to do some work thereon, and he testifies that he then saw that the boat had two decks, an upper or spar deck, and a lower or main deck, in both of which there were hatchways; that the hatchways on the main deck were open, except the one nearest the stairway leading to the upper deck; that in passing along the main deck he (the plaintiff) walked over this closed hatchway, which was raised up some six inches or more above the deck; that he noticed that the planking on the deck was being torn up and replaced; that the hatchway nearest the stairway leading to the upper deck was distant about five feet from the foot of the stairway, and that the distance from the hatch
Then' was no conflict in the testimony with respect to the acts of the plaintiff, upon which the trial court based the ruling complained of, and as it is well settled that, where the undisputed facts establish the existence of contributory negligence on part of the plaintiff, it is the duty of the trial court to instruct the jury to And for the defendant (Railroad Co. v. Sullivan, 3 C. C. A. 506, 53 Fed. 219; Railway Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Aerkbetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569), the only question is whether the trial court ruled rightly in holding that the defense of contributory negligence was conclusively proven by the evidence in the cast'. The plaintiff, by his own testimony, dearly proved that he knew the vessel was undergoing repairs; that he knew that along the lower or main deck there were a number of hatchways, and that Avhen lie passed along this deck, the day before lie was injured, all these hatchways were open, except the one nearest the-stairway, which he knew Avas within five feet of the foot of the stairway, and he knew that by turning to the left when at the foot of the stairway, he would reach tlie passageivay between the hatciies and the side of the vessel, and which extended with a width of over ten feet to the gangway, which he was seeking to reach, thus furnishing a. safe mode of exit. The plaintiff does not. claim that when at the foot of the stairAvay he made an effort to reach this safe passageway, hut failed to find it, hut he testified that he walked forward at an ordi