266 F. 200 | 4th Cir. | 1920
On February 26, 1918, the Russian steamship Omsk was moored at a wharf in the city of Norfolk, where she had been under repair by the Norfolk Shipbuilding & Dry Dock Corporation. The United States Shipping Company was discharging her cargo of cotton. The work of repair had been completed, and the workmen of the shipbuilding corporation, under the direction of its employe, J. C. Adams, were about to take out the bulkheads used in repairing. To get to the place of work, it was necessary for the workmen to go through an opening on the upper deck down a temporary stairway to the iower deck. On this deck, very near the place of work, was an open hatch. The place was usually well lighted, but on the evening of February 26, when Adams directed the workmen to go down, the usual electric lights were out. On the stairway there was very little light, and at the place of work hardly any. Sewell F. Lane, libelant, was one of the workmen directed to descend and.engage in the work of removing the bulkheads. While waiting at the foot of the stairway for other workmen, he moved a few steps, fell through the open hatch, invisible to him, and was severely injured.
The alleged negligence on account of which he seeks to recover was in the failure to have the place of work lighted, and in leaving open and unguarded the hatch through which he fell. The District Court held the ship alone negligent and liable. The ship alleges that, if there was any negligence, it was that of the shipbuilding company, and, further, that the libelant should not recover, because he assumed the risk, and was guilty of contributory negligence. The libelant assigns error, in that the District Court did not hold the shipbuilding company also negligent and liable.
But as between the ship and the shipbuilding company the primary liability is on the ship for leaving the hatch unguarded. The shipbuilding company under its contract had nothing to do with the management of the hatches, and it was the duty of the ship’s master to see
The defense of contributory negligence was not conclusively made out by the fact that Dane would not have fallen, if he had not taken a few steps at the foot of the stairway or ladder, for the same reason, namely, that there was testimony that he was not warned of the open hatch, and no testimony that he was informed of its precise location.
We find that the proximate causes of the accident were the negligence of the shipbuilding company in not furnishing its employé a safe place to work, and the negligence of the ship in not having the hatch guarded as its duty to the shipbuilding company and its employés re
Modified.