Red River Line v. Cheatham, No. 162

No. 162 | 5th Cir. | Jan 2, 1894

PARDEE, Circuit Judge

(after 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 taken at all, and no sufficient reason or excuse is given for taking it in this court. In The Beeche Dene, 5 C. C. A. 208, 55 F. 526" court="5th Cir." date_filed="1893-03-06" href="https://app.midpage.ai/document/j-t-lunn-co-v-cameron-8846654?utm_source=webapp" opinion_id="8846654">55 Fed. 526, this court recognized as the proper rule on the subject of taking testimony in this court the rule declared in The Mabey, 10 Wall. 420, which is that testimony can only be taken in cases in admiralty, on appeal, when it appears that the testimony is material, and a good excuse for not offering it in the trial court is- given. We are not satisfied that a perfectly satisfactory excuse is given by the appellant for not taking the testimony in question in the lower court, where the issue as to the custom in the premises was plainly made by the defendant’s answer; but we are of the opinion that substantial justice requires the admission of the testimony in this court, under all the circumstances of the case, and that all prejudice resulting to the appellee because it was not taken in the court below can be corrected in disposing of the costs of the case.

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 circumstances 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), 60 F. 503" court="5th Cir." date_filed="1893-12-19" href="https://app.midpage.ai/document/american-sugar-refining-co-v-johnson-8849032?utm_source=webapp" opinion_id="8849032">60 Fed. 503, and need not be further considered here.

(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 present action cannot be maintained because of the act of congress entitled “An act relative to the navigation of vessels, bills of lading and certain obligations, 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 East Point, on Red river, to deliver some 8 or 10 boxes and barrels of freight. The landing was made without putting out any lines, or in any manner mooring the boat to the shore, but by lowering the stage to the bank, it being intended by the master in immediate command that the boat would be held to the bank by slow revolutions of the wheel. A portion of the freight to be delivered was carried ashore, over the stage, by some 10 or 12 of the crew (James Brooks, deceased, among the number), to a warehouse some short distance from the bank, the boat being actually kept! in position by working her engines slowly. Meanwhile, the bank was caving, and did cave to such an extent that the stage was left suspended by the fall. Three of the crew got on the sí age to return to the boat, and while thereon the fall tender let go the fall, lowering the stage, by which the outer end struck the current, and the same tilted; throwing James Brooks, one of, the men on it, into the water. Brooks was swept down past the boat to the wheel, which he caught, but, not being able to maintain his hold, dropped off into the river, and Was drowned. The river was high, and rising, at the point where the landing was made. The current was unusually swift and strong. There were many whirlpools, and the banks were caving rapidly.

As we view the evidence, 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 Queen 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 across 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 of 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 making 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 natural 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 necessary 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 river 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 the 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 business being proved, and being known to all steamboat bands and employe's, it follows that tbe risk attendant upon suck method of landing steamboats is incidental to tbe employment, and assumed by tbe employe'. Therefore, if tbe proximate cause of James Brooks’ death was the landing of the steamboat Valley Queen, under the circumstances detailed in-the libel, tbe owner cannot be chargeable therewith, nor liable therefor.

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 that 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 fall 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 conclusion 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 to, 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.