189 F. 312 | 6th Cir. | 1911
The defendant in error, who was plaintiff below, sued plaintiff in error, as defendant, on account of injuries received by the plaintiff in falling through an open hatchway and into the hold of the steamship D. R. Hanna, owned by the defendant, and controlled and managed by agents doing business at Cleveland. Shortly before the accident the steamer had been made fast to the dock of the Pittsburgh Coal Company, at Cleveland, for the purpose of being there loaded by the Coal Company with a cargo of coal. The loading was being done by a machine belonging to the Coal Company and located upon its dock, by means of which machine cars of coal were dumped into a chute and carried therethrough into the hold of
1. Plaintiff’s right to be upon the deck.
The petition alleges that during the work of loading it became necessary and proper for plaintiff to go aboard the boat (a) “in pursuance of the request and invitation of” the captain of the boat; (b) “in pursuance of (plaintiff’s) duties in safely carrying on said work of coal loading”; and (c) “in order that the work of loading said boat could be properly, safely and expeditiously carried on to the benefit of both the Pittsburgh Coal Company and said defendant.”
There was testimony tending to show that it was the duty of the. trim operator, as the loading of the vessel was about to begin (or perhaps just after it started), and after the telescope had been inserted in the hatch, while the boat was still high out of the water, to descend to the deck, oil the sheaves and look after the cables and trimming machinery and see that they are in good condition; that this is practically the only time the trim operator has to perform this duty; that it was the general custom at the Pittsburgh Coal Company’s dock for the trim operator to take this course; that plaintiff always did so, and that he had in that capacity trimmed the Planna at least four times at the dock in question during the then present season and once during the previous season. The greater part of this testimony was received without objection. , Plaintiff also testified that just before the loading began the master of the boat, on leaving, asked plaintiff to “keep an eye” on the mate, and that if anything should go wrong or it should be necessary to “wind” the boat around, he call the master by tele
The jury were instructed that:
“Tf tlie plaintiff hacl any duty which from time to time called him to the deck, whether that duty'related to the care of the machine which he was operating or a conference with any of the officers of the boat, or if, in the customary way of operating the trim machine, it was the habit of the trim operator to pass from time to time upon (he boat, and the defendant knew that that was tlie liabit of the trim operator, then the duty rested upon the defendant to use ordinary care for the safety of any such person, who thus had the right, or was known to tlie defendant to be in the habit of passing upon the deck of the vessel” — •
[the instruction regarding the custom of going aboard the boat being later in the charge limited to “a custom of going aboard to perform some work related to the matter of loading the boat or related to the matter of the loading machine,” with the express instruction that, ill order that such custom be effective, it must be found that the defendant knew that plaintiff had such custom, “or that the loader or the trimmer had the custom to go aboard the boat for the purpose of performing work in relation to the loading” ; that the instruction was not “intended to applj- to a mere custom except that which has a foundation upon the performance of some work by the trim operator in connection with the loading of coal”; and that unless the plaintiff was “rightfully” on the deck, “either by reason of some work or some known custom which lie (defendant) recognized and knew of,” the plaintiff could have no right to recover]. The idea of a duty owing by defendant to plaintiff as a mere volunteer was thus excluded.
The objection on which the first assignment is based was that the defendant was not apprised of the custom. This objection was not good. The question of knowledge was for the jury.
“It is a general custom and rule for the trimmer, and when he is starting a boat is practically the only time he gets to look after his machinery, on the boat, when the boat is high up out of the water, and he gets a very good chance to look at his sheaves and cables and at the machinery underneath which he cannot do at any other, time. Q. IIow does he do that? A. .Pie generally goes down on the deck of the boat. Pie takes advantage of that time, you see, because they roll from 10 to 12 cars in those large vessels before they shift when they start.”
This testimony is criticised as relating merely to an individual habit, and that its object was to “create a right of plaintiff to be on the deck of the vessel and a correlative duty of defendant to have regard for such right.” We do not so consider the testimony, and do not think it open to the objection of immateriality.
2. Defendant’s alleged neglect of duty.
Defendant’s negligence is alleged in plaintiff’s petition to consist, first, “in having and permitting to exist said open hatchway immediately next to and adjacent to said coal loading machine, without having said open hatchway protected or guarded in any manner whatsoever”; and, second, in failing to warn the plaintiff in any way “of the existence of said open hatchway either by verbal notice or by the presence of lights or otherwise.” There was evidence tending to show that when a vessel of the size and type of the Hanna was at a dock of the size of that here in question, there was a general custom, at the time and place in question, to open only the hatches that were immediately to be worked or filled; that the hatches which could not be worked or filled, as the vessel was then located, if open at all should be wide open; and that open hatches should be lighted by lights in the hold, if electrically lighted, otherwise by lights on deck. The object of such precautions would manifestly be0to prevent one being misled by the fact of a partly open or unlighted hatch in stepping-upon
“Plaintiff cannot recover in this action unless defendant were guilty of some breach of duty which it owed plaintiff. It did not owe plaintiff any duty to keep covered 29 hatch nor to wholly uncover it. An open hatchway on a ship, when provided with the usual coamings, is not evidence of negligence on the part of the shipowner.”
This request was denied. The court, after stating plaintiff’s contentions as to the existence of the custom respecting the closing of unused hatches in the process of loading, and their opening to the full extent when open at all, said:
“If there was no custom at all of either of these sorts, then plaintiff is not entitled to recover here, because he predicates his claim upon the proposition that there was a custom which gave rise to a duty with respect to the method of dealing with these hatch covers, and that the defendant did not perform that duty which it owed to him. So that, if you find there was not' any such custom, then the plaintiff is not entitled to recover in this case, for you would not have an establishment by a preponderance of the proof of the defendant’s negligence.”
Immediately following the paragraph just quoted the court said:
“It is contended by the plaintiff that there were insufficient lights about those hatchways, and, ou the other hand, it is contended by defendant that tlie lights were ample. Upon that the proof is in conflict. It is for you to say. under all of the testimony that has been presented to you, what, in your good judgment, the truth is. What were the lights that were there? Were they such as under all the circumstances and surroundings,*318 as tliey have been presented to yon in the proof, a reasonably prudent man would ordinarily put in so eh a situation, having regard to the safety of persons like the plaintiff who might have a right to be there, if yon find that he had such a right? If the provisions by way of light and so on were such as a person of ordinary prudence would customarily furnish under such circumstances, then there would not be any negligence because the legal duty resting upon the defendant there would have been performed.”
Exception is taken and error assigned upon the giving of the first paragraph of the charge above set out. Exception was also taken “to the submission to the jury as to whether.the lights were sufficient lights.” The principal argument in support of the exception to the first paragraph of the charge quoted is that the existence of the alleged custom is denied by a number of witnesses better qualified by experience and observation than were those testifying to the existence of the custom; and that in these circumstances it was error to submit to the jury the question whether the claimed custom was established; in other words, that the proof so clearly preponderated against the existence of the alleged custom that it would be the duty of the court to set aside a verdict based upon such custom. A number of authorities are cited in support of that proposition. Passing the fact that no motion or request for direction of verdict was made, we are unable to say that the testimony of the nonexistence of the alleged custom is given by witnesses of qualification and experience superior to that possessed by those who testified to the existence of the alleged custom, nor that the evidence of the nonexistence of the custom in any way preponderated over the evidence in favor of its existence.
The submission of the question whether there were sufficient lights to disclose the opening in the hatch is criticised upon the proposition that the Hanna carried the usual lights upon vessels of her type. But while there was no testimony that provision for such lights upon this vessel was not-made, there was testimony from which the jury might properly infer that neither the dock lights nor the deck lights sufficiently disclosed the hatch opening, and that the lights in the vessel’s hold were not such as sufficiently to light the opening, whether from the failure of the light below the hatch in question to be in commission or from other causes. Not only was there testimony that the four people, two of whom fell through the hatch opening and the other two of whom barely escaped that experience, saw no light therein, but such experience had some tendency to show the absence of sufficient light.
The refusal to give defendant’s request No. 1 is alleged as error, especially upon two propositions, first, that the plaintiff had no implied invitation to go upon the deck of the vessel; and secondly, that an open hatchway on a ship, when provided with tlie usual coamings, is not evidence of neglect of duty on the part of the shipowner. In support of the first of these grounds counsel cite The Rochambeau (D. C.) 176 Fed. 826, and the decision of this court in Cyborowski v. Transit Co., 179 Fed. 440, 445, 102 C. C. A. 586. We think this ground is not well assigned, in view of the evidence which we have set out. See Pioneer S. S. Co. v. McCann, 170 Fed. 873, 96 C. C. A. 49, where the question of invitation is discussed and pertinent authorities cited.
In support of the second ground counsel cite, among other cases, Horne v. Hammond Co., 71 Fed. 314, 316, 18 C. C. A. 54. In the latter case it was held that:
“An open hatchway on a ship, provided with the usual coamings, as not ordinarily evidence of negligence on the part of the shipowner as regards one employed in loading- a vessel.” (Italics ours.)
What is said in that case must he considered with reference to its peculiar facts. That the ease is distinguishable from the one we are considering appears by the following extract from tlie opinion:
“The necessities and usages of commerce, and the uniform testimony by the admiralty courts to the existence of this rule, alike when it is in issue and when It is not, so support it, not only with reference to the main deck, hut also with reference to betweeu-decks, that it cannot be gainsaid. Of course, like all rules disposing of issues of mixed law and fact, the courts are not permitted to follow it implicitly except in what may be classed as ordinary cases. That the case at bar is of that character is plain, unless it he for the tact that the person who left the hatchway open did not leave any light in its neighborhood. The cases are at variance as to the effect of a circumstance of this character. The Gladiolus (C. C.) 22 Fed. 454, 450: The Victoria (C. C.) 13 Fed. 43, 44; The Argonaut (D. C.) 61 Fed. 517. 518. We are, however, relieved from determining whether this fact makes the circumstances of the case extraordinary, because, when the defendant’s employes came up through the hatchway, they found the stevedores about it with lamps and candles, as already stated; and there is no evidence from which the jury could find that It was not lighted as well as customary or practicable, or whether the deceased fell by reason of the want of light or through his own haste and inattention.”
3. Plaintiff’s alleged contributory negligence.
Defendant presented the following requests:
“(2) If you find that hatch No. 29 was so lighted that its condition could have been observed by plaintiff before he walked into it, as claimed by him, he cannot recover in this action, and your verdict will be for defendant.
“(3) It is in evidence that plaintiff had been engaged upon the Pittsburgh coal dock for several years previous to the accident, and he must be presumed to have possessed on the night of the accident knowledge in regard to the position of the hatches of the D. It. Hanna. And if you find that he proceeded across hatch No. 29 when it was so dark that he could not see whether the hatch was open or closed, then he ought not to have proceeded across the hatch without a light, and having so. proceeded he was guilty of contributory negligence and cannot recover in this action.”
These requests were refused, and errors assigned thereon. The jury were instructed as follows:
“But even though you should find that the plaintiff had a right to be on this deck; even though you should find that, as respects the plaintiff having a right to be on this deck (as I am assuming you will have found, on this theory), there was a failure on the part of the defendant tq properly deal with the subject of opening that hatchway; and even though you found that it did not furnish suflScient light to justify the conclusion that it had performed its duty, as I have defined its duty, still the plaintiff would not be entitled to recover in this case unless, in respect to the matter of falling through this hatchway, he himself was at that time in the exercise of ordinary care for his own safety; for one has no right to recover who himself contributes to the injury which he receives by his own failure to exercise proper care, which is ordinary care for his own safety. If, in passing along from the northwest corner of No. 29 — if that is the comer at which he was standing just before the accident — he, in passing on top of the hatch cover of No. 29, going over towards his machine, was not exercising reasonable care for his own safety, and, in consequence of that failure on his part to exercise ordinary care for his own safety, fell into this open hatchway and was hurt, he has no right to recover.”
Plaintiff in reply to the question what there was to prevent his walking between 29 hatch and 28 hatch had testified:
“I thought it was the safest way to walk across 29 hatch, for the simple reason it was dark on that side of the machine — there was no light there —and it was made dark by the pau and the telescope being down, and I did not want to walk along in between there because the space is narrow and there is chains in there, and also clamps that they clamp on the*321 hatches and. a fellow might tumble and go down in the hold, so I walked across 29 hatch.”
It is clear that the second request presents too strict a rule of diligence on plaintiff’s part, in that it eliminates the consideration of due care, and makes the plaintiff negligent in case he could by any means have discovered the fact that the hatch was open.
We have carefully considered all the assignments properly raised and so far as argued, and are of opinion that no error is shown.
The judgment of the Circuit Court must accordingly be affirmed.