46 F. 400 | S.D. Ala. | 1891
The libelant sues to recover damages alleged to have been sustained by the death of her minor son, William L. Grimsley, which was occasioned by the explosion of the boiler of a steam-tug owned by the defendant, and on which said minor was lawfully employed, as averred in the libel. The husband of libelant and father of said minor, who was, at the time, the engineer on said steamer, also lost his life by said explosion. ' Libelant avers her right to maintain this action, and that she sues under and by virtue of a statute of the state of Alabama, which provides that, when the death of a minor child is caused by the wrongful act or omission or negligence of any person or persons, his or their servants or agents, the mother, in case of the death of the father, may maintain an action of damages therefor. Code Ala. § 2588.
The libel avers that the explosion was caused by a defect in the works, machinery, or plant connected with and used in running and operating the steamer, and that sn.id defect existed by the negligence of defendant, his servants and agents; and the libel further avers that the explosion, by which said minor came to his death, was caused by the negligence of the engineer in charge of the machinery of said steamer. There are exceptions to the libel on the ground that it sets forth no admiralty 01 maritime cause of action, and alleges no fact which can give this court jurisdiction. An answer is also filed, which, in substance and effect, takes issue on every material allegation of the libel. The exceptions are overruled. See The E. B. Ward, 17 Fed. Rep. 456; The Garland, 5 Fed. Rep. 924; Holmes v. Railway Co., Id. 75.
The proof shows that, with'in a year prior to the explosion, the boiler, machinery, and appliances were inspected, approved, and licensed for one year by the government inspectors. But there is evidence which tends to show that about two weeks before the explosion there was some derangement of the appliances for supplying the boiler with water. It appears that the tug was furnished with a suitable pump, and with an iniector to supply water to the boiler, and that the derangement or dis-" order was particularly confined to the injector;- that the pump was at the time detached, but could be adjusted in a few minutes, and put'to work. If further appears that it was the duty of the- engineer to’ make the attachment of the pump when necessary, and that it was not unusual for steamers to have their pumps detached, as this one was, when they were furnished with an injector. The proof, however, shows that, within three days prior to the explosion, the boiler, pumps, and all other machinery on the boat were examined, thoroughly cleaned, and put in order, by a competent engineer, who was the local agent of the owner in
There was nothing in the employment and service of the engineer which made him any more the representative of the defendant than the employment and service of the cook made him such representative. The engineer was not employed to do any of the duties of the master, and the cook was not under his superintendence, or required to obey his directions,- so far as the evidence shows. They were both in the same common employment. It has been held that, where the master is on board, the subordinate officers and seamen are fellow-servants. The Egyptian Monarch, 36 Fed. Rep. 776; The Queen, 40 Fed. Rep. 694. That the cook and the engineer were engaged in the same common employment, and were fellow-servants, see The City of Alexandria, 17 Fed. Rep. 390, where it is held that a cook and steward are co-employes. See, also, Quinn v. Lighterage Co., 23 Fed. Rep. 363. “The porter and the carpenter are fellow-servants with the stewardess of a steamer, and the owner is not liable to her for any damages occasioned by the negligence of either the porter or the carpenter.” Steam-Ship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. Rep. 397. “The firemen, brakemen, porters, and the engineer are fellow-servants.” Railroad Co. v. Ross, supra; Whit. Smith, Neg. pp. 141, 151, 152, and notes.