161 F. 640 | E.D. Va. | 1908
(after stating the facts as above). Many acts of negligence and want of proper care for the libelants as passengers are charged against the respondents, and, likewise, the respondents aver that the libelants were negligent in many respects contributing to tlieir own injury, and should not on that account recover; and on these issues thus joined between the parties considerable testimony, as well of passengers upon the vessel as of the libelants and officers and crew of the steamer, was taken orally before the court, in which there is much conflict, though on the crucial questions affecting the causes of the accident, as viewed by the court, there is but little difference. The cases turn upon whether the libelants were guilty of such contributory negligence in taking and remaining in the positions they did as passengers on the vessel as to disentitle them to recover for the injuries sustained by becoming entangled in the boat’s lines used in making her fast at the point of destination. Ordinarily it may be conceded that passengers who expose themselves to dangers incident to landing, while the officers and crew of the vessel are making the ship fast, such officers themselves being in the exercise of proper care and caution, with a properly equipped steamer, would be disentitled to recover; but just what the passenger should do, and where he should remain, while the ship is making fast must necessarily depend upon the character of the vessel, and the number of passengers aboard. In this case the conditions were such, having regard to the large number of passengers carried on a vessel of the size of the Vansciver, her licensed capacity beihg 500 (though she had a permit of local inspectors, so far as the waters of Delaware River were concerned, to carry 280 additional), that at the time of the accident, she having about her licensed number of passengers, especial care should have been exercised to avoid the very accident which occurred. This vessel was being used as a ferry steamer, over a route on which, by reason of the Jamestown Exposition, there
“I came in. on the express car, the last car, and, when I got to the pier, I noticed the upper deck seemed to be crowded to its utmost. I noticed that they blocked the door of the saloon, and were standing against that, and had closed the door, and no one could get in, and 1 went on the forward gangplank, and as far as I could see pretty much every place was taken up by passengers, and there was a space right where the gangplank went out, where no passengers were standing, and X went forward and crowded myself up right up against the passengers, and still left that open for the gangway, and stood with my back to the bow of the boat.
“Q. Did you observe the presence of ropes or other things on that part of the deck where you were standing?
“A. No, sir; I never saw any rope at all. The passengers were crowded in the bow of the boat as thick as they well could stand, and I backed up into the crowd in order to get away from the gangplank, and where I was standing apparently was as clear as this floor, as far as I could see.”
He further testified that he had no knowledge of the existence of the rope, heard no warning on the part of any one to change his position, or to stand back, or get out of the way, and that he never saw any officer of the vessel on the deck where he was standing. “The first I knew I was caught in the rope. Where it came from or anything I do not know. My leg was caught, and I was first dragged a little to the bow of the boat, and then carried to the hawsepipe, and I was dragged some little distance before I fell. The passengers were so thick that I could not fall until I got to the hawse hole. I was held up by the passengers they were so thick, and in that way I never saw the rope at all until after the accident had occurred. As the rope tautened on me, it seemed to pull me to the side of the boat, and, when my leg went to the hawsepipe, I felt there was quite a rush of passengers, and I never saw the rope at all, and did not know there was a rope until I was caught in it.” George W. Dean, mate of the Vansciver, and in charge of her navigation at the time of the accident, a witness examined by the libelants, in describing the circumstances of the landing, says:
“I stopped the boat as so.on as she was in position, and I got the other line out, and got the boat in position. The crowd commenced falling aft. It was a matter of impossibility to get from the pilot 'house down through the crowd, no matter what hurry you are in, until they can get away from the stairway.”
And the captain of the vessel, examined by the respondent, in answer to a question as to what precautions had been taken prior to the accident to prevent passengers coming down on the freight deck from the upper deck, and what he did as to keeping them off until the landing was made, answered :
“We asked them not to do it, and keep clear of the gangboard, and not go forward of the gangboard, and we would rather not have them go on that deck.
*643 “Q. Did you do anything to keep them off?
“A. Yes, sir; we stand at the gangway and keep pushing, 200 or 300 of the crowd behind them pushing them down on you, and shoved you on the deck, and I put lines up. and they cut them, and untied them, and we did not do it. After that I stopped using the lines, and ordered gates to be put up there, and put them up as soon as T got them, and they stopped them some little, but not much. They got over them after I put them up.”
With a vessel crowded as this was at the time of the accident, of which the respondent had full knowledge by reason of carrying the same crowd substantially daily, and the likelihood of danger to passengers, it should not escape liability for the failure to properly provide for the holding back and detention of the crowd in a place of safety until the boat could be made fast; and there was no excuse for allowing this crowd to fill up the entire standing space of the boat on all of her decks, and at the same time so stretch and place the lines upon and across the bow of the boat as to endanger the lives and limbs of passengers allowed to stand in the bow by their becoming entangled in the lines when making the vessel fast. To place these lines, as was done, across the bow of the boat, with loops in each end so the lines could be drawn to the side of the steamer on which the landing happened to be made, with the how of the steamer filled with passengers, would almost inevitably result in causing just such an accident as took place here. Knowing the size of the crowd to be handled, and the difficult landing to be made, at exposed points on Hampton Roads, common prudence required that these passengers during the landing should have been locked out of or entirely cut off from the place at which the lines were handled, and the gangboard thrown out; and if this precaution was not taken, and, on the contrary, the whole bow of the boat from which the lauding was to be made was filled with passengers, to further endanger them by spreading the lines athwartship, from port to starboard, instead of safely coiling the same on each side of the boat, was culpable negligence. That the respondent knew of the necessity for this precaution, so far as holding the passengers back until the boat was made fast, was manifest; and, besides, they had previously to this trip used ropes across the companion way from, the upper to the lower decks, and had taken the same down with a view of substituting gates, and this occurrence took place between the removing of the ropes and the placing of the gates, and was almost inevitable with a crowd thus turned loose, and lines so placed on the deck, and the vessel taxed to its utmost capacity.
Libelants insist, further, that there was a defective snub line in use by the Vansciver at the time of the accident, and that she had neither a competent nor sufficient complement of employes engaged in and about the landing of the steamer, taking into account the number of passengers on board and the character of landing to be made, and, also, that she negligently entered the slip at too high a rate of speed. There is much force in these contentions, and considerable evidence to sustain the same; and the court thinks it is highly probable that one and all of them to some extent entered into the happening of the accident; but the real cause thereof, in the opinion of the court,
The court finds that the libelants were not guilty of any negligence, such as would disentitle them to recover, under the circumstances of this case, and the only question remaining is the ascertainment of the damages they are respectively entitled to. The libelant Saunders sustained the loss of one foot, which was amputated above the ankle, and Fernin a broken leg, the ends of the bone of which have not yet formed a union, owing to his physical condition, and may not do so for a long time to come. Both libelants were great sufferers, were long confined to the hospital, especially Fernin, who at the time of the trial was under the care of his physician, and each of them was. able to stand only by the aid of crutches. They were both carpenters,, and aged Saunders 55 and Fernin 24, and at the time of the accident were receiving high wages at the Exposition, namely, $4.50 per day, and had been receiving the same for some time, their usual compensation being $2.50 to $3. >
The court believes, under all the circumstances, that an award to Saunders of $4,000 and to Fernin of $3,500 should be made, and decrees may be entered for the same, respectively.
