Carter v. Brown
| Decision Date | 23 February 1914 |
| Docket Number | 2570. |
| Citation | 212 F. 393 |
| Parties | CARTER et al. v. BROWN. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Legendre and Edward Rightor, both of New Orleans, La., for appellants and cross-appellees.
W. J Waguespack, of New Orleans, La., for appellee and cross-appellant.
Before PARDEE, Circuit Judge, and GRUBB, District Judge.
This was a libel in personam, filed by the appellee against the appellants in the District Court for the Eastern District of Louisiana to recover damages, alleged to have been suffered by appellee by reason of a personal injury received by him while in the employment of the appellants, as a laborer on the Mississippi river steamboat Queen of the Bends. The injury was caused by the fall of sacks of sugar on the appellee, which were piled on the deck of the boat. The fact of injury, and that it was so caused, is not in dispute. The disputed questions relate to the condition in which the sugar sacks were piled, and the responsibility of the appellants therefor, and to the conduct of the appellee at the time he was injured, as bearing upon the question of his own fault as a contributing cause of his injury. The facts other than those stated, are in irreconcilable conflict. There is even a dispute as to whether the accident occurred in nighttime or daytime, and as to whether the boat was tied up at a landing or moving in midstream.
The appellants can only be responsible for the injury because of fault on their part which had causal relation to it. The appellee asserted the existence of such fault, and that it consisted in the negligent manner in which the sugar was piled on the deck of the boat, in that it was piled eight sacks high with one tier and no support, other than the sacks themselves, when it should have been piled but five sacks high in the absence of such support.
The record shows that it was not customary to pile sugar sacks of the dimensions of those which fell higher than five or six in a single tier, and, in the absence of additional support, and the inference of fault in some person, if the sacks were piled as asserted by appellee, was properly drawn by the District Judge.
The testimony as to the height of the tier of sacks that fell whether eight high or only five high, is in hopeless conflict. There is no dispute that the sacks fell from a single tier, which had no support other than the sacks themselves. We concur with the District Judge's conclusion that the weight of the evidence of the witnesses, taken in connection with the probabilities fairly deducible from such few facts as are undisputed, and from the physical situation, shows that the sacks were piled eight high.
Having reached the conclusion that the sacks which fell were negligently piled, the next inquiry concerns the appellants' responsibility for the negligent piling. The causal relation to the injury is obvious. The appellants invoke the fellow-servant rule, as a defense. It is manifestly, however, the duty of the master or the mate to see to the proper stowage of the cargo, ad that the boat was kept properly trimmed. Failure of the master or mate to properly discharge this duty would bind the owners of the boat, whose vice principals as to the performance of this duty they were. The record fairly shows that the master, H. M. Carter, one of the appellants, had actual knowledge of the method adopted for piling the sacks that fell, and either directed it or acquiesced therein. Under such a state of the record, the District Judge properly held that the fellow-servant rule afforded appellants no protection as against the appellee's claim.
In the case of Anderson v. The Ashebrooke (C.C.) 44 F. 124, Circuit Judge Pardee, speaking of the application of the fellow-servant rule, said (page 127):
And again in the same case the same judge said (44 F. page 128):
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Port of New York Stevedoring Corporation v. Castagna
...he suffered a maritime tort. The trial judge was peculiarly familiar with the question, for it was he who wrote the opinion in Carter v. Brown, supra, and our view that his charge as to contributory negligence was sound. There are no other questions which, in our opinion, require comment. J......
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THE ETNA, 1.
...156 F. 374. It is likewise recognized that the master of a vessel has the duty of seeing that the cargo is properly stowed, Carter v. Brown, 5 Cir., 212 F. 393, and, where an injury occurs to a stevedore unloading a cargo as a result of negligent loading, the ship and her owner cannot escap......
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Tropical Fruit S.S. Co. v. Towle
...wind, though the accident in either case might have resulted from the negligence of the master? We think not.' The case of Carter v. Brown, 212 F. 393, 129 C.C.A. 69, cited by the libelant, is easily distinguishable from case at bar. That was a suit in personam against the owners of the ste......