133 A. 566 | Pa. | 1926
The Paloma, a ship of the Munson Steamship Line, brought to Philadelphia a cargo of sugar in bags for the Franklin Sugar Refining Company, defendant, and while the latter, acting as stevedore, was transferring the cargo from the ship to the dock on March 21, 1922, David S. Kindell was fatally hurt by the fall of a derrick. After bringing this suit, based on the alleged negligence of defendant, Kindell died and his executrix was substituted as plaintiff. The trial resulted in a verdict and judgment for plaintiff and defendant has appealed.
Errors assigned raised the one question of the trial court's refusal to take the case from the jury or to enter judgment for defendant n. o. v. Despite the very able argument for appellant, a careful examination of the record discloses a case for the jury. In view of the verdict we must consider every fact and inference properly deducible therefrom in the light most favorable to plaintiff: Bowser v. Citizens L., H. Power Co.,
The defective condition of the cable was not seriously controverted, but defendant very earnestly contended that its breaking resulted from such a sudden and extraordinary listing of the ship as could not be anticipated or guarded against. Some of defendant's witnesses seemed to support that contention; however, their credibility was for the jury. One or two of plaintiff's witnesses said, in effect, it was but little worse than they had seen other ships list, and there are circumstances which tend to discredit the contention of extraordinary listing. Neither the ship nor its cargo was disturbed, no one else was thrown or hurt, and none of the three other derricks was disturbed or any other rope or cable broken, while no satisfactory explanation was given for the alleged extraordinary lurch. There was no storm, the river was calm and what caused it did not appear; a possible explanation *363
was disturbance of the water by passage of some large ship in the river, another was the absence of swash boards from the water ballast compartment of the Paloma. In any event, the lurch was not caused by an act of the defendant. The facts as to the lurch were not so clear that the court could declare them, while the verdict of the jury, under the charge of the court, implies a finding that the listing in question was not an extraordinary occurrence. Where a question depends upon oral evidence (as did the character of the listing) it is for the jury to pass upon its credibility (Sorensen v. Quaker City Poster Advertising Co.,
Kindell was not in defendant's employ and had no duty of inspection, therefore, the trial judge properly charged there was no evidence of contributory negligence; certainly none that could be declared as matter of law.
As stated above we have considered the case on the evidence favorable to plaintiff and assumed as facts *364 what could be properly deduced therefrom. So considered, the authorities cited by appellant are not controlling and it would serve no useful purpose to more fully discuss the evidence favorable to defendant.
The judgment is affirmed.