110 F. 670 | N.D. Cal. | 1901
On November 27, 1898, the steamer T. C. Walker was owned by the petitioner, the California Navigation & Improvement Company, and employed by it as a common carrier of passengers and freight between the ports of San Erancisco
I. The boilers and the drum of the T. C. Walker'were constructed in the year 1893, and on May 14, 1898, were inspected by the United States inspector of boilers, and a certificate issued by him permitting their use in the navigation of the steamer for a term of one year with a steam pressure of 170 pounds to the square inch. The evidence also tends to show that at the time of the explosion the steam pressure in the boilers did not exceed 157 pounds. It was also shown that a few weeks before the accident a leakage was observed in one of the girth seams of the drum, but no examination was made for the purpose of determining the condition of .the drum at that point, or to ascertain the exact cause of such leakage; and the fact that such leakage had been discovered was not brought to the attention of the master of the steamer, or any managing agent of the petitioner. It may be stated as a well-settled principle of law that the obligation of a common carrier of passengers is to carry them safely, unless prevented by some cause against which human foresight and diligence cannot guard. Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115; The City of Panama, 101 U. S. 453, 25 L. Ed. 1061; Railroad Co. v. Derby, 14 How. 468, 14 L. Ed. 502; Shear. & R. Neg. (5th Ed.) § 495. And in the determination of that branch of the present case relating to the claims of Foppiano, passenger, and of the personal representatives of Blunt and Brizzolara, passengers killed, the mere fact of the bursting of the steam drum is prima facie evidence of negli-
gence upon the part of the petitioner or its employés, and casts upon it the burden of proving that such explosion could not have been prevented by reasonable care; that is, by the exercise of the highest degree of care on its part. Caldwell v. Steamboat Co., 47 N. Y. 282; Dunlap v. The Reliance (C. C.) 2 Fed. 249; Boyce v. Stage Co., 25 Cal. 460; Yoemans v. Navigation Co.,.44 Cal. 71. This rule of evidence is based upon the principle “that, where an' act takes place which usually, and according to the ordinary course of things, would not happen if proper care was exercised, it is presumed that such care was not observed.” Caldwell v. Steamboat Co., 47 N. Y. 282. The voluminous evidence taken before the United States commissioner, upon which this case was submitted for decision, has been fully
2. The claim of the administratrix of the estate of Jeremiah Daly, deceased, rests upon principles of law peculiarly applicable to the relation of master and servant. Daly was employed as a fireman on the T. C. Walker, and while engaged in his work was killed by the explosion to which reference has been made. The petitioner, as his employer, owed to the deceased the duty of exercising reasonable care to make the place where he was required to work safe; and this, of course, would include the duty to exercise reasonable care to ascertain whether there was any defect in the steam drum which might endanger his life while at work. “A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work or by which he is to be surrounded, shall be reasonably safe.” Railroad Co. v. Baugh, 149 U. S. 368-386, 13 Sup. Ct. 914, 921, 37 L. Ed. 772, 780. This rule imposes upon the master the duty of exercising “reasonable care in furnishing suitable machinery and appliances for carrying on the business for which he employs the servant, and in keeping such machinery and appliances in repair, including the duty of making inspections, tests, and examinations at the proper intervals.” Railway Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597. The master cannot escape from the obligation of this positive duty by the delegation of its performance to an agent or servant employed by him. In the language of the court in Corcoran v. Holbrook, 59 N. Y. 517, 17 Am. Rep. 369:
“As to acts which a master or principal is hound as such to perform towards his employes, if he delegates the performance of them to an agent, the agent occupies the place of the master, and the latter is deemed present, and liable for the manner in which they are performed.”
That such is the law upon this point is well settled. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Fuller v. Jewett, 80 N. Y. 46, 36 Am. Rep. 575; Ford v. Railroad Co., 110 Mass. 240, 14 Am.
3. The question as to the amount of damages the claimants are respectively entitled to recover is to be next considered. Guseppe Foppiano was severely injured by the explosion, suffering a fracture of the sternum at the junction of the fourth rib; a fracture of three ribs on the right side and two on the left side; a severe scalp wound; wound and burn of the left leg, and burns on the hands and wrists. These injuries for a time threatened his life, and caused him to be confined to his bed for three or four months. He had not fully recovered when he gave his deposition in February, igoo, and up to that date had not been able to work; but whether or not his injuries are such as to permanently disable him, or disable him for any great length of time, is not shown by the evidence. The burden of proving such disability, if it exists, was upon the claimant for damages. He is 58 years of age. Prior to the accident he was in the enjoyment of good health, and had been for some time employed at wages of from $12 to $14 per week. As the result of his injuries he has incurred expenses amounting to $300, and lost the wages he might otherwise have earned. This claimant is entitled to recover damages in such an amount as will compensate him for his pain and suffering, the expenses he has incurred, and for the value of the time lost by him in consequence of his injuries. In my judgment, he should be allowed damages in the sum of $2,500.
4. Uuigi Brizzolara was killed by the explosion. At the time of his death he was 59 years of age, and his life expectancy, according to the American table relating to that subject, was 14 years and 9 months, or thereabouts. He left surviving him a widow and five children, three of whom were minors, living at home. Plis business was that of a dealer in coal, from which he derived an annual income of $2,000, and his personal expenses were not less than $100 per month. Jeremiah Daly was 42 years of age at the time of his death, and left a wife and eight minor children, the eldest 16 years of age. He was a fireman by occupation, employed at wages of $45 per month. All of this money went to his family, with the exception of his necessary personal expenses, which were small. His life expectancy was 26 years and 9 months. W. A. Blunt, one of the passengers killed, was 47 years of age. He was a laborer, industrious, in good health, and was employed at the usual rate of wages paid for unskilled labor, and at the time of his death was receiving
“When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given* as under all the circumstances of the case may be .lust.”
This statute does not authorize- damages to be given for the suffering of the deceased, nor for grief and sense of bereavement upon the part of the surviving relatives. Only the direct .pecuniary loss to the heirs of the deceased can be considered in estimating the damages which may be recovered in actions under this statute. Morgan v. Southern Pac. Co., 95 Cal. 510, 30 Pac. 603, 29 Am. St. Rep. 143, 17 D. R. A. 71. The language, of the statute is that “such damages may be given as, under all the circumstances of the case, may be just.” This, in effect, means that the damages shall rest in the sound discretion of the court or jury; a discretion to be exercised in view of the fact “that such damages are to be measured by what shall fairly seem -the pecuniary injury or loss to the plaintiff.” Morgan v. Southern Pac. Co., 95 Cal. 501, 30 Pac. 601; In re Humboldt Dumber Mfrs.' Ass’n (D. C.) 60 Fed. 428. And it is manifest that in reaching a conclusion in relation to the proper sum to be awarded, a conclusion which must be based solely upon a consideration of what the deceased might probably have earned by his labor, or realized from his business in the future, for the benefit of his heirs, the court is necessarily compelled to proceed upon very uncertain data. In the language of the court in Southern Pac. Co. v. Lafferty, 6 C. C. A. 474, 57 Fed. 536, it may be said:
“The method of estimating the pecuniary damages in cases of this character is, at best, somewhat problematical, and depends to a great extent, upon the sound judgment of the jurors as to what would be just, reasonable, and proper under all the circumstances, taking into consideration the age of the deceased, his condition of health, his employment, and reasonable expectations of life.”
Even if it should be assumed that the deceased would have lived the full period of his life expectánc}*, it is reasonable to suppose that his later years would have been feeble, and it would be contrary to all experience to assume that he would have been in the constant receipt
_ 5. The administrator of the estate of John T. Tulan is not entitled to recover, as the evidence will not warrant the court in finding that his brothers and sisters, who are his only heirs, have suffered any pecuniary loss by reason of his death. The case of Burk v. Railroad Co., 125 Cal. 364, 57 Pac. 1065, 73 Am. St. Rep. 52, was an action brought by a sister and two brothers of one Burk to recover damages for his death, which was alleged to have been caused by the negligence of the defendant therein; and in construing the section of the statute above quoted the supreme court of California held that in an action brought by collateral heirs of a deceased person to recover damages on account of his death the mere fact that they are such heirs does not tend to show pecuniary damage, and, in the absence of other proof tending to show actual damages, or at least probable loss, resulting to them from his death, the recovery must be limited to nominal damages. The court in that,case said:
“It is said tlie fact that a right to sue is given implies that damages, may be recovered although no rights of plaintiff have been violated. Confessedly, plaintiffs had no legal claim on deceased for anything, and he owed no duty to them to accumulate an estate and leave it to them. * * * The majority of men die without much property. Whether the deceased would have succeeded in accumulating, and, if he had been successful, would have left it to plaintiffs, is matter of pure speculation. Such a guess as to probabilities is not, according to settled rules and maxims of the law, proper ground for the award of damages.”
So here there is no evidence tending to show that Capt. Tulan was in the habit of saving his wages, or that his brothers and sisters had any reasonable expectation that he would ever give or leave them, or any of them, anything of value. In this state of the evidence, the administrator of his estate would be entitled to recover nominal damages if the action was in a court of law, but in courts of admiralty nominal damages for personal torts are not awarded. Barnett v. Luther, 1 Curt. 434, Fed. Cas. No. 1,025. A decree will be entered dismissing the claim of the administrator of John T. Tulan, and awarding damages to the other claimants in the several amounts above stated, and for costs, and interest from the date of the decree until satisfaction.
