250 F. 403 | 1st Cir. | 1918
This is an appeal from the final decree of the District Court of Massachusetts that the appellee, who was li-belant in the court below, recover damages for personal injuries received by him October 18, 1916, while at work as a longshoreman, in unloading cargo at Boston from the steamship Bolton Castle.
The libelant received his injuries by reason of the breaking of a swivel pin in a block at the foot of thq. port derrick, on the forward side of the foremast. This derrick was a part of the hoisting apparatus of the vessel, and at the time of the accident was being used to carry loads from the deck to the wharf. The heel of the derrick was attached to the foremast upon, its port side, about 6 feet above the level of the deck, and connected with it where it joined the mast was a steel block through which a wire rope ran to a winch located about 4 feet in front of the mainmast. This block weighed about 75 pounds. It had a swivel at one end consisting of a U-shaped steel forging with a shank fashioned into a pin about 1J4 inches in diameter. This pin passed through a hole in a metal strap that extended across the head of the block, and was clinched on the inside of the strap, so that it formed a part of the block. This U-shaped forging was so connected to a cast steel receptacle riveted to the mast that the block was free to move vertically, and also to revolve around the pin of the swivel and follow the direction of the wire rope that passed through it. It is evident that the strain upon the block fell almost entirely upon the head of the pin inside the strap, and that the pull upon it was designed to be straight. To accomplish this the block had been provided with a universal joint by means of its attachment to the mast, and the swivel.
The bjock, after its njanufacture and before its use, had been tested for an 8-ton strain; but the load which was being carried by the derrick to which it was attached at the time of the accident was estimated at only 900 or 1,000 pounds.
The Bolton Castle was built in 1914, and then equipped with hoisting tackle and gear for loading and unloading cargo, of which the block in question was a part. It is not in dispute that the block was made by a reputable manufacturer, and proper and suitable for the purpose
The block with the metal strap upon it, through which the pin passed, and upon the inside of which it was headed down, was not in evidence. If it had been, it could have been easily determined whether the old cracks in the pin could have been seen before the accident. It appears from the testimony that after the accident the chief officer substituted
We are unable to determine the width of the strap from the lines of wear upon the pin, and are in doubt whether the old breaks could have been seen or not. The block with the strap, through which the pin passed, was in the possession of the vessel after the accident; it was not produced at the trial, and no explanation was given of the failure to produce it. The failure, unexplained, to produce evidence which is in the possession of a party, raises a presumption that, if produced, it would not be favorable to the contention of the party possessing it. Kirby v. Tallmage, 160 U. S. 379, 16 Sup. Ct. 349, 40 L. Ed. 463; Graves v. United States, 150 U. S. 120, 14 Sup. Ct. 40, 37 L. Ed. 1021; Runkle v. Burnham, 153 U. S. 216, 225, 14 Sup. Ct. 837, 38 L. Ed. 694. We do not, however, rely upon this presumption in reaching our conclusion because an inspection of the pin discloses that there was unequal wearing on the inside of the head next to the strap, and also upon the sides of the pin, and we are convinced, as was tire learned District Judge, that “originally the pin bore almost wholly on one side, as the. wear shows; and the load was for a long time carried on that side of the pin, and the other side did very little work.” This unequal wearing clearly proves that the pin must have been bent, by reason of the strain upon it not being in tire direct line of its axis, as originally designed, but at an angle with it, caused by the uneven surface of its head.
We are satisfied that the crookedness of the pin, the uneven wearing upon its head, and its failure to work freely as a swivel could be plainly seen, and that they should have caused the vessel, in the exercise of the degree of care required of it under the circumstances, to have made such an examination as would have disclosed the old cracks in it, and that it therefore was chargeable with notice of them and the defective condition of the block, and solely liable for the injuries received by the libelant.
The decree of the District Court is affirmed, with interest, and the appellee recovers his costs of appeal.