Aiken v. Smith

• Decision Date: 23 January 1893
• Docket Number: 54.
• Parties: AIKEN et al. v. SMITH.
• Court: U.S. Court of Appeals — Fifth Circuit

54 F. 896

AIKEN et al. v. SMITH.

No. 54.

United States Court of Appeals, Fifth Circuit.

January 23, 1893

John D Grace, for appellant.

Richard De Gray, for appellee.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District judge.

PARDEE Circuit Judge.

The appellee, Charles Smith, exhibited his libel in the district court against the steamboat Whisper in a cause of subtraction of wages, and damages, civil and maritime, and therein claimed that, having lately been employed as a roustabout on said steamboat, he had been assigned against his will to act as fall tender in connection with the hoisting and lowering of the boat's stages, which were very large and heavy and were and could only be operated by steam power and a steam engine; and at the same time the mate of the said steamboat, without previous notice, selected and designated a boy from 13 to 15 years of age, and without experience, to run said engine by which said stages were to be operated; and in the third article of the libel it was alleged--

'That while said steamboat was on said trip going towards Donaldsonville aforesaid at a point in St. James Parish, at about 12 o'clock at night, she undertook to make a landing, when libelant was ordered to go to the steamboat's drum, hanging under her boiler deck forward and abaft of the steps, so as to lower the stage as the boat arrived at a bank; that, as she was at or near the shore, the first order was to lower the stage, which he did, having three turns of the fall around said drum, and the stage was lowered to a certain extent, and thereupon another order was given, and to raise the stage, and your libelant at once put more turns of the fall around the drum, that said stage might be raised by said steam engine; but that the boy in charge of the said engine, not being competent and experienced, and being unfit and incapable to discharge the duties of stage hoister, started the engine in the opposite direction whereby libelant was caught in said fall, and carried partly in the air with his head downwards, and had the first and second finger of his right hand cut off between the said fall and said drum.'

For the injuries suffered, the libelant claimed the sum of $2,500 and, in addition thereto, the sum of $7.50 for wages. The claimant's answer, in substance, is to the effect that the libelant was hired as fall tender; that he was injured through his own fault and negligence, and without the fault of the steamboat Whisper or her owners; and that the amount due him for wages had been fully tendered to him and refused. On the hearing the district court found as a fact 'that the injuries sustained by libelant while on board of the steamboat Whisper, and employed thereon as a mariner, resulting in a confusion of the thumb, index, and middle fingers of the right hand of said libelant, and the subsequent amputation of the said index and middle fingers, were caused through the fault and negligence and want of proper care of those in charge of the navigation of said steamboat Whisper,' and thereupon ordered and decreed that the libelant should have and recover from the steamboat Whisper the sum of $506.75, as follows: $6.75, amount tendered by claimant for wages due, and $500 damages, with legal interest from judicial demand, and costs of suit. The claimant, having taken an appeal to this court, makes 11 assignments of error, amounting, in substance, to a complaint that the finding of the district court is against the evidence.

Taking the case as stated in the libel, it is by no means clear that the libelant did...