Truelson v. Whitney & Bodden Shipping Co.

• Decision Date: 19 January 1926
• Docket Number: No. 4567.,4567.
• Citation: 10 F.2d 412
• Parties: TRUELSON et al. v. WHITNEY & BODDEN SHIPPING CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

10 F.2d 412 (1925)

TRUELSON et al. v. WHITNEY & BODDEN SHIPPING CO., Inc.^*

No. 4567.

Circuit Court of Appeals, Fifth Circuit.

December 28, 1925.

Rehearing Denied January 19, 1926.

C. W. Howth and M. G. Adams, both of Beaumont, Tex. (Lamar Hart, of Beaumont, Tex., on the brief), for appellants.

F. D. Minor, of Beaumont, Tex., Palmer Pillans and Alexis T. Gresham, both of Mobile, Ala., and Samuel C. Lipscomb, of Beaumont, Tex., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This is an appeal from a decree rejecting a claim of the appellants, the widow and minor daughter of J. H. Truelson, that the brigantine Geneva, by reason of negligence alleged, was liable in damages for the latter's death; the appellants alleging that deceased's death occurred without fault or negligence on his part. Those allegations were put in issue.

The circumstances of Truelson's death are indicated by the following statement: The deceased and one Nelson operated a launch in the Port Arthur canal and slips thereof in the business of selling cold drinks and tobacco to seamen on vessels there docked. Several days prior to August 31, 1923, the Geneva arrived at Port Arthur from a foreign port, and, for the purpose of taking on a cargo of timber, was docked in a slip which was dredged at the expense of a railroad company, the docks on each side of that slip being owned by that company, the slip being about 250 feet wide where the Geneva was docked. The health officers in charge required the Geneva, the port side of which was next to the dock, to be "breasted off" the dock the distance of about 4 feet in order to keep infected rats from reaching shore. Permission was obtained from the harbor master to effect this result by stretching hawsers or cables from the vessel to each side of the slip. Two cables on the starboard side extended across the slip and were fastened to ring bolts on the wharf on the opposite side of the slip. Those cables when stretched were, respectively, about 12 and about 14 or 15 feet from the water where they left the vessel and about 6 feet from the water on the opposite side of the slip. They sagged somewhat because it was not practicable to pull them taut enough to make them straight. It was customary for vessels docked in that slip to be "breasted off" in the way adopted by the Geneva. Each day while the Geneva was in the slip Nelson and Truelson in their launch several times went in and out of the slip, going under lines stretched across it from the Geneva and other vessels. They did so several times on August 31. They went out of the slip without mishap at about 7 o'clock in the evening of that day. Some time later that evening when "it was about dusk," while the launch was going into the slip, the top of it, which was about 6 feet above the water, came in contact with the Geneva's first cable in the direction from which the launch was coming, whereupon the deceased went forward towards that cable and, either when attempting to release it or when going towards it after it had been released, was struck by it and knocked from the launch and...