113 F. 982 | S.D.N.Y. | 1902
This is an action brought to recover damages for personal injuries suffered by the libelant while working on the steamship Anchoria, on the nth day of August, 1899, between 9 and 10 o’clock in the morning. The steamer was being loaded at New York with lumber and iron, and the libelant was a gangway man in charge of the forward whip of No. 2 hatch. A span of rope ran between the masts of the vessel, about 25 feet above the deck, and was used to support four whips, two for hatch No. 2, and two for hatch No. 3. The whips were purchases or falls formed of ropes and blocks, with chain slings at the ends. They were operated by steam winches. The whips of No. 2 hatch at the time in question were being used to load iron, and it was the libelant’s duty to stand on the main deck at the forward part of the hatch, and guide the whip, so that the cargo in the sling would not strike the hatch coamings of the decks as it descended with the load, and the sling would not catch as it came up empty. While he was performing this duty, and after he had guided a draft of iron into the lower hold, the bight of the sling in returning caught on a projecting rung of a stationary iron ladder running from the bottom of the hold to the under side of the deck above, about a foot forward of the coaming of the hatch. The
The ladder was about a foot and a half wide, and consisted of two upright sidepieces, with 10 or 12 rungs, which ran through holes in the sidepieces, and originally were welded smooth on the outside; but the starboard or inshore sidepiece of the ladder had in some way become bent towards the port side of the vessel, so that several of the rungs projected from 1^/2 to 3 inches on the inshore side. It was upon one of these that the sling caught. The ladder had been out of order in this way for several months or a year, to the knowledge of all who had occasion to use the hold, including the agent of the steamer who employed the men who worked at loading and discharging. No defense is interposed to the libelant’s claim with respect to the condition of the ladder, but it was urged that the accident was the result of negligence on the part of the libelant and his fellow servants, in that they knew, or should have known, the condition of the ladder, and should have guarded against the sling catching on the rung.
The libelant was new to the work at this particular place, and was not notified or aware of the condition of the ladder. Nor was he, while doing the- work, in such a position that he should, in the exercise of ordinary care, have observed its defective condition. It was the duty of the owner to keep the ship in such order that the loading appliances could be reasonably used without liability to catch on obstructions which would become sources of danger to the gangway man handling the whip. And, in the event of the existence of danger which was unknown to the gangway man, it was incumbent on the owner to give him notice to that effect in order that he might refrain from exposing himself to the peril, if he should be unwilling to take the risk. In neither respect was the duty of the employer fulfilled, and I hold that there was negligence for which the vessel is liable, and that there was no contributory negligence on the part of the libelant.
It appears that the libelant and the workmen in the hold were employed by the same master and were engaged in a common occupation. When this draft reached the hold, it was received by a man working there in receiving the cargo named White, who had been familiar with the condition of the ladder some months before this time, and had known of the danger from the projecting rungs when cargo was being loaded or unloaded. He said that this draft of iron was unslung a little forward of the ladder, and the sling hooked up and taken by him to the coaming of the hatch out of danger from the ladder, and that he then directed the winchman to go ahead, and had turned to walk back of the hatch, when the libelant fell; that he then noticed the sling caught on the projecting rung. He attempted to account.for this by a motion of the span, incident to its use by the several whips which caused it to sway; but such explanation is not satisfactory. . This witness said the iron was to be stowed as far forward as possible. Testimony on the part of the claimant shows
The libelant’s injuries were concededly very serious. He was unconscious for several days after the accident. Among other severe and painful wounds, he received a compound fracture of his right leg, rendering several operations necessary, during' which he suffered intense agony. As a result of the operations, the leg was shortened about three inches, and remained stiff. In consequence of his injuries, he became permanently disabled for any but very light work, which he has been, and probably will be, only able to do when sitting. It appears that such work is difficult to obtain. At the time of the accident, he was a healthy man of 44 years of age, and earning $3 a day for day work, and $5 for night work, with steady employment. I consider $6,000 a reasonable allowance for liis damages, under the circumstances.
The contributory negligence of a fellow servant is not a defense in a case of this kind, under the authorities. Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266; Steamship Co. v. Carey, 119 U. S. 245, 7 Sup. Ct. 1360, 30 L. Ed. 354; Young v. Railway Co. (C. C.) 46 Fed. 160; Railway Co. v. Young, 1 C. C. A. 428, 49 Fed. 723; Kennedy v. Grace & Hyde Co. (C. C.) 92 Fed. 116; Thomas, Neg. 908.
Decree for libelant for $6,000, with interest from August 7, 1901, the time of filing the libel, and costs.
