(аfter stating the facts as above). The first matter to be Considered is the motion of the appellee to exclude the evidence as to the custom of landing steamboats on the Mississippi river and its branches, taken-, since the appeal, in this court,- on the ground that the same should have been taken in the court below, if takеn at all, and no sufficient reason or excuse is given for taking it in this court. In The Beeche Dene,
The appellant makes two points in this court, each tending to deny all right of action to the appellee:
(1) It is submitted that there is no right of action, under the law of Louisiana, against the Red River Line, under the circumstanсes set forth in' the libel; that article 2294 of the Civil Code of Louisiana doés hot apply, and the articles 2295 and 2299 have never been amended so as to give any survivorship of action, or right to damages to survivors. This objection was considered in the case of Sugar-Refining Co. v. Johnson (recently decided),
(2) That it has never been held by the supréme court of the United States that a claim for damages resulting from the wrongful death of a person on the high seas, or on the waters within the admiralty jurisdiction, survives in admiralty, even when the death occurred within the territory of a state where the law provides for recovery in like cases.
■In view of the conclusion reached on the merits of the case, we do not find if necessary to pass upon this question, nor upon the further objection suggested by brief, but not presented in the court below, that this presеnt action cannot be maintained because of the act of congress entitled “An act relative to the navigation of vessels, bills of lading and certain obligаtions, duties and rights in connection with the carriage of property,” approved February 13, 1893 (27 Stat. 445).
On the merits the case shows that at about 7 o’clock p. m., May 17, 1892, the steamboat Valley Queen (George W. Rea, master), on a trip from New Orleans to Shreveport, made a landing at
As we view the evidеnce, but two points are necessary to consider:
(1) Was it negligence on the part of the master, for which the owner is liable, to have landed the Valley Queеn at the place in question, when the river was high, the current strong, and the bank caving, without mooring the said boat to the bank by lines before attempting to deliver freight acrоss the stage to the warehouse on the bank?
(2) Was the owner liable for the negligence which resulted in the death of James Brooks, because sufficient care and diligence were not used by the master in selecting a competent fall tender?
The learned judge of the court below found that it was negligence on the part оf the master to have landed the boat under the circumstances mentioned, and that there was no such proof of general usage of vessels upon the river in mаking such landings as would justify the master therein, or excuse the owner. We find in the case that, as a matter of fact, there were at the landing in question no trees, or other nаtural objects, to which the boat could have been tied, in order to make the landing, and that the check posts which had been placed in the bank for such use if nеcessary had either caved into the river, or were submerged by water. And we find by the evidence taken in this court that the general usage of vessels navigating the Mississippi rivеr and branches is to land steamboats, having stages operated by steam, for the delivery of small quantities of freight, by running the bow into the shore, and holding the vessel in position by thе revolutions of the wheel, and without putting out lines, and this, at all stages of the river; and we further find that this general usage facilitates the rapid delivery of freight and passengers, and is not attended with unusual risk. The general usage in the busi
Tbe .evidence shows that tbe negligence of tbe fall tender was very likely tbe proximate cause of Brooks’ death. Tbe preponderance of evidence is that tbe master of tbe vessel ordered tbe fall tender, when tbe bank caved, and at tbe time that Brooks was on tbe stage returning to the steamboat, to bold onto the fall, but thаt instead of bolding onto tbe fall, which sustained tbe stage, and kept it from tilting, be let go the fall; thereby letting tbe stage tilt and fall into tbe river, throwing James Brooks off into tbe river. Tbe fаll tender was selected by tbe master from among tbe crew, and, so far as tbe record shows, was of tbe average intelligence and capability. His own evidence with regard to the'matter in .band is that be slacked up the fall because tbe captain, ordered him to slack it up, and it is likely that be so understood tbe order; but be further testifies (evidently in answer to a question as to whether be beard anybody call out from tbe shore) that:
“Everybody was hollering. ’ It looked like everybody was a-bollering. Everybody around tbe stage was a-bollering. I can’t tell you who it was, but there was commotion and excitement just like when there is an alarm, — when there is a man drowned.”
Our conclusiоn on tbe whole case is that, so far as James Brooks came to bis death through tbe landing of tbe steamboat at tbe time and under the circumstances referred tо, it was through one o-f tbe risks incident to bis employment, and that, so far as tbe act of tbe fall tender was a proximate cause of, or contributed to, ,his death, tbe act was attributable to tbe negligence of a fellow servant, and that for neither is tbe owner liable.
Tbe decree , of tbe district court should be reversed, and tbe cause remanded, with instructions to dismiss tbe libel, with costs in tbe district court; but tbe costs of appeal, and of this court, should be adjudged against tbe appellant. And it is so ordered.