Alaska Pacific S.S. Co. v. Egan
| Decision Date | 03 February 1913 |
| Docket Number | 2,149. |
| Citation | 202 F. 867 |
| Parties | ALASKA PACIFIC S.S. CO. v. EGAN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Herbert S. Griggs, of Tacoma, Wash., for plaintiff in error.
B. F Jacobs, of Tacoma, Wash. (J. F. Fitch, of Tacoma, Wash., of counsel), for defendant in error.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
The parties will be designated as they were in the court below. The plaintiff was a longshoreman in the employment of the defendant, engaged in lading its steamship the Admiral Sampson with a cargo of flour in Tacoma Harbor. The mooring lines of the steamer were attached to the tops of two dolphins, each consisting of a cluster of five piles, banded together at the top; the central pile standing higher than the others. These dolphins stood off the shore wall about 10 feet, and the shore wall stood at approximately the height of the dolphins. The usual means of approaching a dolphin for the purpose of attaching or casting off a mooring line was by a plank 2 inches in thickness, about 12 inches in width, and 10 or 12 feet long, one end of which rested on the shore wall, and the other resting on the top of one of the dolphin piles or attached by wire thereto. The plaintiff had been working in the hold of the steamship. After 5 o'clock of a December evening, when it was growing dark, he was directed by the foreman of the defendant to cast off the bow mooring line from the center pile of the dolphin to which it was attached. In obeying the order, he went along the shore or sea wall to a point opposite the dolphin, and undertook to cross over on the plank, when the plank came loose from the dolphin, and he was precipitated, together with the plank, to the rocks below, receiving the injuries for which the action was brought. He alleged in his complaint that the plank was in an unsafe and dangerous condition for the use to which it was put, a condition unknown to him, but which was known, or by reasonable care should have been well known, to the defendant. The answer denied negligence and alleged the defenses of assumption of risk, contributory negligence, and that the act of negligence, if any, was that of a fellow servant.
The plaintiff was a longshoreman of many years' experience and was well acquainted with the premises in question. He testified that at some time prior to the accident, possibly a year, he had seen the off shore end of the planks attached to the dolphins by wire straps, but that of late he had not noticed their condition, and that at the time of the accident it was too dark for him to see how the plank was attached. He admitted that he had been out to one of the dolphins on the day of the accident, when it was light and he could see, but that he did not observe whether or not the plank was fastened to the dolphin. He testified that he had not to his knowledge ever before passed over to the dolphin to which the bow line of the steamer was attached; that he did not know that the offshore end of the plank was loose; that he supposed that end was fast and secured sufficiently for him to go out to let the line go, and get safely back. The employe who cast off the other mooring line at the same time gave illuminating testimony when he said:
'When a man goes to work he has to hurry up to get his line off, and he has not much time to look around.'
The assignment of error that the court denied the defendant's motion for a judgment of nonsuit, made at the conclusion of the plaintiff's testimony, is of no avail to the defendant, for the reason that, after the denial of its motion, it proceeded to take testimony, and, at the conclusion thereof, did not ask for an instructed verdict in its favor. Hartford Life Ins. Co. v. Unsell, 144 U.S. 439, 12 Sup.Ct. 671, 36 L.Ed. 496; Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746. The record of the testimony, however, is such that the court would not have been justified in taking the case from the jury.
The only way to approach the dolphin for the purpose of casting off a mooring line was by the plank. The plaintiff, when directed to...
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