147 F. 106 | 2d Cir. | 1906
Before leaving port, while hauling in to shift the vessel from one berth to another, a loose wire of the cable pricked libelant’s right hand. No negligence on the part of the ship is charged, so far as the original injury is concerned, but it is contendéd that he did not receive the subsequent care to which as a seaman he was entitled. The hand gave him no trouble while in the port of New York. He worked just as well as before. But after three days from their sailing it swelled up and pained
By the time they reached Port Limón the hand was worse. Greco was at once put in charge of a competent surgeon who saw and treated him twice a day for the four days the ship remained there. The libelant says that he asked to be allowed to remain in hospital there. This is disputed by the ship’s officers, and they are corroborated by the entirely disinterested testimony of Dr. Steggall, who says that he at first advised the transfer of the man from the ship to the hospital, but, upon asking the libelant if he would go to the hospital, the latter refused on account of his fear of the Limón climate in midsummer. It is at times afflicted with yellow fever. Thereupon the doctor told the -ship’s officers that the man could perfectly well go to New York and would receive better treatment when he got there. He also gave the first officer instructions as to treatment to be administered on„the voyage home. He testified:
“The libelant’s hand showed noticeable improvement during iny treatment oí same. I used an antiseptic treatment, i. e., lotions and dressings, and I advised the chief officer to administer the same daily during the trip to*108 New York. The patient needed daily attendance, and I so instructed the officer in question. The hand was suppurating, but not very much. Otherwise I would not have allowed him to go.”
He sent bandages, ointment, and some solution on board for use in dressing the hand. That the decision to return to New York was in fact the doctor’s seems entirely clear. The captain testified:
“If the doctor saw him four days, every day twice, he must know whether it was necessary to leave him in the hospital, or not. I am not a doctor. I took the doctor’s advice. * * . * He said if we cleaned the hand every day it would-be sufficient for New York.”
On the return voyage the Sarnia touched at Kingston for mail and passengers in the middle of the night and reached New York in seven days. The libelant was at once sent to a hospital, when the hand was found to be in very bad condition, the pus having burrowed extensively among the tendons, and the result is that the hand is permanently crippled. As to treatment on the return voyage there is a conflict of testimony. The libelant says the mate medicated his hand only the first day and then abandoned it and left it with the waitress. The chief officer insists that he dressed the hand every day at least once cleansing it and using the materials the doctor had sent, and that the stewardess - was present and assisted. There is some indication that on some days she also dressed it a second time. The libelant admits that the stewardess (waitress, he calls her) dressed it every day with “some kind of carbolic acid and put some kind of paste over it”; and says that the paste was all exhausted before they reached New York. Since these are the materials the doctor sent aboard for the purpose, it would certainly seem that the doctor’s instructions were carried out.
We are unable to concur in the conclusion that the ship is responsible for the unfortunate result. The District Judge held that the libelant should have been left in the hospital at Kingston in conformity with his request. This seems too severe a, rule to apply. The expressed desire of a man with an injury apparently not serious is not to be taken as controlling. The question to be determined was a medical one, the advice of a competent physician was sought and followed, and the ship’s officers should not be held negligent because they followed his advice, especially where the injury was of an apparently trifling character. As to leaving him in the hospital at Port Limón, the District Judge says that it is immaterial whether or not the libelant wished to be left there. But this was not a mere matter of preference. It was a choice of evils. When a man injured, even as Greco was, protests against being left unacclimated in midsummer in a yellow-fever port, it is a very serious responsibility to assume to overrule his protest and expose him to'what he may reasonably assume to be a deadly peril. Had he been left there and his hand healed quickly, but with the result of bringing him down with an attack of yellow fever, it might well be contended that the master was inhuman in not heeding his protest and bringing him back to the port of shipment, especially since the doctor gave assurance that the voyage might be made without risk to the hand. We are not
Undoubtedly a seaman who is injured, even without fault of the ship, should be properly cared for and afforded prompt and competent medical and surgical treatment, so far as the conditions (nearness to port, etc.) may admit. The libelant Was relieved from duty, attention was given to him at once, and was continued till port was reached. Both at Kingston and at Port Limón he was at once afforded medical and surgical treatment. The doctors may each have made a serious mistake in this particular case, but certainly they were “competent.” The one at Kingston (where claimant has an agency) was the one regularly employed, when necessary, by the American Packet Company. He was a “bachelor of medicine and master of surgery, Edinburgh University 1890,” who after three years’ clinical work in London, Paris, and Edinburgh, located in Jamaica, where he has been in practice for 11 years. The doctor at Port Limón was graduated from the Royal College of Surgeons of England and the Royal College of Physicians of London in 1892, was two years in the Royal Mail Steam Packet Company’s service and then, in 1894, assumed charge of the hospital of the Costa Rica railroad at Port Limón, where he has been ever since. The ship’s officers might fairly be entitled to conform their conduct touching any medical or surgical question to the instructions of men thus qualified to decide it.
Reference is made to The Iroquois, 118 Fed. 1005, 55 C. C. A. 497; The Eva B. Hall (D. C.) 114 Fed. 755; The Troop, 128 Fed. 856,
The decree is reversed with costs, and cause remanded with instructions to dismiss the libel.