Caniff v. Blanchard Nav. Co.

• Decision Date: 07 July 1887
• Court: Michigan Supreme Court
• Parties: CANIFF v. BLANCHARD NAV. CO.

33 N.W. 744

66 Mich. 638

CANIFF v. BLANCHARD NAV. CO.

Supreme Court of Michigan

July 7, 1887

Error to circuit court, Wayne county.

W.L. Carpenter and R.E. Frazer, for plaintiff and appellee.

Geo. S Hosmer, for defendant.

CHAMPLIN J.

This is an action brought by the plaintiff to recover damages arising from alleged negligence of the defendant as owner of the steam-vessel called "The Don M. Dickinson." He alleges in his declaration that this vessel was constructed with a main or lower deck, and an upper deck.

Through these decks, at occasional intervals, were cut holes for the purpose of loading and unloading freight, called hatchways. That the main deck, on the eleventh day of March, 1886, was entirely closed in, by the covering being placed over the gangways and over the hatchways on the upper deck, and the hatchway in the forepart of the main deck was negligently left uncovered and open. That, on the day aforesaid plaintiff contracted with William J. Crosby, the master and keeper of said barge, and a duly-authorized servant of said defendant, to work on said boat as a mate thereon, through the season of navigation next ensuing, which would commence some time after the first day of April, 1886. That, after the aforesaid engagement was made, the plaintiff then, at the invitation of Crosby, went on board the said barge to inspect the same. That he got on board of said boat on its upper deck at a point near the forepart of the same, and walked lengthwise on said deck to the afterpart of the boat, and there descended a ladder to the main deck, on reaching which, owing to the facts above set forth, he found himself in total darkness; and not knowing the whereabouts of said Crosby, who had preceded him, he shouted, and said Crosby, who in the mean time had reached the forepart of the main deck of said boat, answered, and negligently told said plaintiff to come forward, and negligently omitted to warn said plaintiff that said hatchway was uncovered. That plaintiff thereupon proceeded along towards the forepart of said boat, not knowing that said hatchway was uncovered, and not knowing the location of said hatchway, and, owing to the darkness, being unable to discover the same; and while so proceeding, in consequence of the negligence of the servant of the above-named defendant above set forth, and in the exercise of due care on his part, said plaintiff fell through said uncovered hatchway through said main deck into the hold of said barge, about 10 feet below. The declaration then sets forth the injury received in consequence thereof. A second count of the declaration alleges the negligence of the defendant to consist in leaving the hatchway uncovered, and that he was upon said boat by invitation of the keeper of said boat, a duly-authorized servant of the defendant, and that the servant negligently invited him to come forward, and negligently omitted to inform him of the whereabouts and condition of said open hatchway.

All the testimony given upon the trial is returned in the bill of exceptions, from which it appears that the plaintiff had been sailing for 12 to 14 years, and was familiar with the boats as they are laid up; that the steam-barge Don M. Dickinson was what is known as an iron boat, and had been built as a blockade runner; that this boat, and a steam-tug called the "Justice Field," had been in use by defendant during the season of 1885, and at the latter part of the season were laid up in winter quarters in a slip at the foot of Adair street, in the city of Detroit. William J. Crosby had been employed as master of the Don M Dickinson during the season of 1885; and, when she was laid up in the fall, his duties as such master ceased, and he was employed as ship-keeper of the vessels. His duty as ship-keeper was to keep all people off the vessels, and to see that they were aired, and to keep the snow shoveled off, and, in case they commenced to leak, to pump them out. It also appears that it is a universal custom when vessels are in port, and especially when laid up for the winter, to ventilate them for the purpose of stopping decay in them, and, in the case of iron vessels, to protect them from rusting. This is done by removing the hatches, to allow the air to circulate through the hold. The hatches of the main deck of the double-decked vessels are always kept off on bright days, or on good windy days, and upper hatches are also taken off, so that the circulation of air will be complete. If it be stormy, the top hatches are closed, leaving the lower ones open. It is the ship-keeper's duty to attend to the proper ventilation of the vessel, and, as such ship-keeper, Capt. Crosby received positive instructions from the manager of the defendant company to allow no persons on board these vessels without a written order from him or the president. The Don M. Dickinson has three hatchways,--forward, midship, and aft; and they have the ordinary coamings of a vessel of her capacity, being about 10 inches in height. On the day in question the forward hatch had been left off for the purpose of ventilation.

It is claimed by the plaintiff, and his testimony tended to prove, that, at the close of navigation in the fall of 1885, Capt. Crosby was promised by the defendant to be retained in its employment as captain during the season of 1886 on board the Don M. Dickinson in case she was put in commission. It is also claimed, and the testimony tended to show, that it was the custom for captains of such vessels to engage the mate, and that, on the eleventh day of March aforesaid, Capt. Crosby engaged the plaintiff to sail with him as mate on the Don M. Dickinson the coming season. The engagement was made at some place on Jefferson avenue, and at that time plaintiff had never looked over the boat. That he went down to the boat with Capt. Crosby for the purpose of looking it over. That on Adair street they were met by two men that were buying junk, who asked Capt. Crosby if he had any junk to sell. He told them to come down, and he would see if he had. They proceeded to the slip, when Mr. Crosby requested plaintiff to wait, and see which way a man turned who was in a buggy, and then come forward. That the others went aboard, to do which it was necessary to ascend by a ladder near the forepart of the ship to the upper deck, and there pass aft, and descend to the main deck through the scuttle. Plaintiff waited a minute, and then went upon the upper deck, and down through the scuttle. On reaching the main deck, he found it was all dark; the others had gone forward; that he hallooed, and asked them where they were, and Capt. Crosby told him to come up forward; that he walked forward, and walked into the open hatchway.

The plaintiff testified "that there was a coaming on this hatch that I fell in. I walked right over it, of course. It was in the dark. I could not see. I should judge the coaming was ten inches or a foot. I never measured it; but I know about what they are. *** Had been mate, and had sailed on the lake for some time, and was familiar with the boats, and the method of laying them out. *** The ship was not in commission. It was lying there, and had been all winter, I suppose. That was the first I saw of her that day. I have been sailing for twelve or fourteen years, and am familiar with the boats as they are laid up. *** When we ship on a boat, we generally look around to see how the boat looks. She was not fitted up then, but just as she went into quarters, and required considerable fitting up before she would go into commission; but I generally looked around a boat when I shipped on her. When the captain asked me to go down to take a look at her, I would not have gone if I had not been asked to. *** The Don M. Dickinson is...