BA Carroll Stevedore Co. v. Makinda

• Decision Date: 24 June 1927
• Docket Number: No. 2087.,2087.
• Citation: 20 F.2d 19,1927 AMC 1535
• Parties: B. A. CARROLL STEVEDORE CO., Inc., v. MAKINDA.
• Court: U.S. Court of Appeals — First Circuit

1927 AMC 1535, 20 F.2d 19 (1927)

B. A. CARROLL STEVEDORE CO., Inc., v. MAKINDA.

No. 2087.

Circuit Court of Appeals, First Circuit.

June 24, 1927.

Frank W. Knowlton, of Boston, Mass. (Charles C. Cabot and Choate, Hall & Stewart, all of Boston, Mass., on the brief), for plaintiff in error.

G. Philip Wardner, of Boston, Mass., for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an action of tort for personal injuries. There was a verdict for the plaintiff, upon which judgment was entered, and this writ of error prosecuted.

The plaintiff was employed as a common seaman by the Luckenbach Steamship Company on its steamship K. I. Luckenbach, and at the time of his injury had been on this ship about 4 days. He had worked, however, on ships for about 10 years.

The defendant, a stevedore company, was employed in discharging lumber from the steamship at a wharf in Boston when the accident occurred.

The steamship was about 470 feet long, having its deckhouse amidships, extending 60 feet fore and aft. She had 8 hatches, Nos. 1, 2, 3, and 4 forward of the deckhouse, and Nos. 5, 6, 7, and 8 aft of the house. It was about 3 feet from the aft side of the house to the forward side of No. 5 hatch. The hatches measured about 23 feet fore and aft. The work of discharging the lumber began at 1 p. m. on the afternoon of September 5, 1924, and the discharge proceeded from hatches 1 to 6, inclusive, simultaneously. The lumber was random lengths of various sizes, including boards, 2-inch plank, 3×4's, 2×3's, and the lengths varied from 10 to 30 feet. The ship lay alongside the wharf, and the distance between the ship and the edge of the wharf was about 18 inches. The height of the rail of the ship above the level of the wharf varied with the state of the tide. The distance on the morning of the accident (September 6th) was about 15 feet. The gangplank descended from a little forward of the middle of the deckhouse and ran aft down along the side of the ship. The method of discharge was as follows:

The lumber was taken out of the hold by booms at the forward end of each hatch, one being on the starboard and the other on the port side of the hatch. These booms were operated by winches. Attached to the booms were falls, which were shackled together, and slings were hooked to the shackles and lowered into the holds. The lumber was lifted out of the hold in the slings, 30 or 40 pieces at a time. The port boom was stationary over the middle of the hatch and the other over the side of the ship next to the wharf. The lumber in the sling was first drawn straight up out of the hold by the port boom and then drawn by the starboard boom over the side of the vessel and dropped into cars standing on the wharf parallel to the ship and about 3 or 4 feet from the edge of the wharf. A hatchman stationed on the ship, where he could see what took place on the wharf between the car and the side of the ship, gave the signals to the winchman for the various operations of the winches in the discharge of the lumber, and the men on the cars took it as it reached a car.

The rule of the ship when in port was for the chief officer to give his orders to the boatswain and for the latter to give the orders to the crew. On September 5, the chief officer directed the boatswain to chip and red-paint all rough spots along the face of the ship and touch up any spots where it wanted to be touched with black paint and, on the afternoon of that day, the boatswain told the plaintiff to get some black paint and go down and paint the side of the ship, to work in the middle of the ship, not over at Nos. 4 or 5. At that time the cargo was being unloaded from the first 6 hatches. The plaintiff went to work amidships, standing on the wharf painting the ship's side. The evidence was in conflict as to whether he remained amidships all that afternoon or a part of the time worked close to or abreast No. 5 hatch. There was evidence that he was told to keep away from No. 5 hatch, but remained there until removed at the request of McHugh, an employee of the defendant, who notified the chief officer of the ship that he would stop work if he was not removed. At that time the chief officer notified the boatswain to have the plaintiff paint at Nos. 7 or 8 hatches, but the boatswain told the plaintiff to paint amidships and he worked amidships near the gangway during the remainder of the afternoon.

When the plaintiff quit work on the night of the 5th of September the middle of the ship was painted, but from the point where he finished to No. 5 hatch, a distance of about 6 feet, remained unpainted. On the following morning (September 6th) the boatswain told the plaintiff to go to work where he left off last night. The plaintiff went to work at 8 a. m., starting in where he left off on the afternoon of the 5th. The stevedores had not at that time begun to unload at No. 5 hatch. It took the plaintiff about twenty minutes to finish his work from where he left off to No. 5 hatch. At the time of his injury he had just completed this work and was looking for the boatswain as he desired permission to go elsewhere to work, for he thought the place was dangerous. While he stood there a timber fell and broke his leg. The stevedores began discharging lumber from No. 5 hatch that morning after he went to work, but whether the lumber discharged at the time of the accident was the first sling discharged that morning was in dispute. The accident occurred about 20 minutes after he began work.

A witness for the defendant, its boss at No. 5 hatch, testified that he saw Makinda working under the hatch about 5 minutes before the accident and told him to get out of there, and that he could have told his hatchman not to send out any more lumber over the side until the plaintiff got away, but did not. There was other testimony tending to show that the plaintiff was warned that morning to go away from No. 5 hatch. The plaintiff, however, denied that any one warned him the morning of the accident.

There was also evidence that the sling of lumber being discharged at the time of the accident contained some 30 or 40 pieces; that as it came up out of the hold over the hatch a piece was hanging from the sling; that the chief officer of the ship stood on the saloon deck above No. 5 hatch, and seeing this, and fearing that the lumber might fall back and injure some one in the hold or on the deck, shouted a warning to the stevedores to look out below, and as the sling was swung out he saw the piece fall, hit the gunwale of the ship, and bounce off to the dock. This was the piece of timber that hit the plaintiff.

Another witness for the defendant, employed on the car, testified that he saw the load that caused the injury "as it was coming over the coamings at the side of the ship," with "this piece sliding out, and he hollered," and then "he heard the hollering"; that he "did not remember whether it hit anything before it hit Makinda or not." The hatchman at No. 5 testified that it was his duty to signal the winchman to stack the load over the side of the vessel to the car; that on the morning of the 6th he saw the plaintiff working right at the hatch, and told him to go away, but that he kept on painting; that he saw a 2-inch piece of lumber fall out of the sling, and hit the plaintiff, but that, when the load came out of the hatch, and when he signaled to the winchman to stack the load, he saw no lumber that was falling or that looked loose.

From the foregoing evidence we think it could reasonably be found that on the morning of the accident the plaintiff went to work painting at or near No. 5 hatch before the stevedores began discharging lumber; that the hatch boss and hatchman saw him there, and had reason to believe that he would remain there until directed by the ship's officers to go elsewhere; that notwithstanding this, and notwithstanding the hatchman and the other stevedores had been warned that the load or sling of lumber in question, as it came out of the hatch, was in a dangerous condition, the hatchman caused it to be stacked over the side of the ship, causing the accident, instead of heeding the warning and readjusting the lumber in the sling before stacking it over, and without warning the plaintiff that the load was to be sent over; and that the District Court did not err in submitting the case to the jury.

There was adequate evidence that the defendant was negligent. And while the evidence as to whether the plaintiff's presence at the time and place of injury was a contributing cause was conflicting, there was also evidence from which the jury might find that his presence there, if careless, was a mere condition, and not a contributing cause, for the defendants could be found to have had the last opportunity of avoiding the accident before stacking the load over the side of the ship.

But whether the plaintiff's presence at the place of the accident was a mere condition, or a contributing cause,...