Mathews v. Case

• Citation: 21 N.W. 513,61 Wis. 491
• Parties: MATHEWS v. CASE AND OTHERS.
• Decision Date: 25 November 1884
• Court: United States State Supreme Court of Wisconsin

61 Wis. 491

21 N.W. 513

MATHEWS

v.CASE AND OTHERS.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Racine county.

Turner & Sloan, for respondent.

Charles H. Lee and Geo. H. Noyes, for appellants.

COLE, C. J.

This is an action for a personal injury. The defendants were the owners of the schooner J. I. Case, a vessel duly enrolled and licensed for the coasting trade. The plaintiff was employed by the defendants as mate, and one Gray was employed as master. It is stated in the complaint that on August 3d the schooner started on a voyage from the port of Milwaukee to Escanaba, thence to Lake Erie. On the sixth of August, at Escanaba,--the defendants not being present,--the master, having the exclusive control and direction of loading a cargo of iron ore, negligently loaded and overloaded the same, and then proceeded on the voyage; that, in consequence of such negligent loading and overloading, the vessel sprung a leak; that on August 10th the vessel encountered a storm, and leaked badly by reason of the negligent loading; that it was the plaintiff's duty to obey the orders of the master; that at this time the schooner had not the usual appliances for carrying and securing the yawl-boat on deck; that the same, being rotten and unseaworthy, was negligently placed on the deck by the master's orders, and negligently left without being fastened, so as to prevent it from moving about in case water was washed aboard, or the vessel rolled. This being the situation, and the hatch near the yawl-boat not being fastened down securely, the master took the wheel, and the plaintiff, as was his duty, proceeded to batten down the hatch carefully. While so engaged, the vessel, having a large amount of water in her hold, and being improperly loaded, and the yawl-boat being negligently on the deck, without proper appliances for fastening, the master negligently steered the vessel into the trough of the sea, the vessel rolled, and large quantities of water came on deck and washed the yawl-boat against the plaintiff, and broke his leg.

These are the material allegations stating the cause of action. It will be seen that whatever negligence there was, either in improperly loading the vessel, or in placing the yawl-boat on deck without securely fastening the same, or in negligently steering the vessel into the trough of the sea, was the negligence of the master alone. There is no averment that the vessel was not properly equipped when she left the port of Milwaukee. It is only alleged that when the schooner encountered the storm there were not the usual and proper mechanical appliances upon the vessel for carrying and securing the yawl-boat on deck. But non constat such appliances had been furnished by the owners. If there were any...