Clowes v. The Frank and Willie

Citation45 F. 494
PartiesTHE FRANK AND WILLIE. [1] v. THE FRANK AND WILLIE. CLOWES
Decision Date23 March 1891
CourtU.S. District Court — Southern District of New York

Hyland & Zabriskie, for libelant.

Robert D. Benedict, for claimant.

BROWN J.

On the 18th of July, 1890, while the schooner Frank and Willie was discharging a cargo of lumber at one of the docks in Gowanus canal, the libelant, an able seaman, who was unloading from the hold, had his left leg broken, through the fall of lumber against and upon him. He was treated at the hospital at the ship's expense, and now When the pile fell, the libelant had removed, and was holding, his end at work with the mate on the port side of the schooner, and under his direction others worked on the starboard side, discharging through the same hatch. The lumber consisted of pieces from 12 to 30 feet long, and about 8 inches wide by 3 inches thick. They were piled in tiers, and were not fastened together by ties. After a space was cleared down to the floor over the keel, the lumber stood about 7 feet high. They did not discharge from the top across to the side of the ship, but worked up and down, nearly perpendicularly. The libelant, and many witnesses in his behalf, testify that the tiers became shaky, and that repeated expostulations were made with the mate against discharging in that way; without leaving a proper support at the bottom for the high tiers above to prevent their falling that they told him that this method was dangerous; and that it ought to be worked sloping, like stairs, as the gang were doing down on the starboard side. The mate testifies that he did discharge in that way; but his testimony is clearly overborne by other witnesses, who say that he replied with oaths, and would not do as requested. A list of the ship to starboard made the lumber more liable to fall. The libelant was new to the handling of lumber, and had been instructed to be careful in taking off his end of the sticks, while the mate took the other end, so as not to pull down the top of the pile. The defendants contend that it was through the plaintiff's negligence in not observing this precaution that the pile was pulled over when only two or three tiers remained. When the pile fell, the libelant had removed, and was holding, his end of one of the stocks. The mate had not taken up his end, and so was able to get out of the way.

It is impossible to tell whether the libelant did or did not contribute to the fall of the lumber. By the common-law rule of this state, the plaintiff, in order to recover in such a case, must not only show defendant's negligence, but prove affirmatively that he himself was not guilty of the smallest contributory fault. Dobbins v. Brown, 119 N.Y. 188, 195, 23 N.E. 537; Reynolds v. Railroad Co., 58 N.Y. 248; Cordell v. Railroad Co., 75 N.Y.330; Bond v. Smith, 113 N.Y. 378, 21 N.E. 128; Stone v. Railroad Co., 115 N.Y. 111, 21 N.E. 712. Under such a rule, I might not be authorized to give anything to the libelant. But this harsh rule on shipboard would offer condition of the pile of lumber, which his own unskillfulness or of our admiralty courts. The Max Morris, 137 U.S. 1, 11 S.Ct. 29, affirming 24 F. 860. The libelant's inexperience is not proof of negligence, while the known fact that he had been previously unused to this kind of work was only an additional reason why the mate should have taken at least the usual precautions to prevent the lumber from falling. The weight of testimony leaves no doubt in my mind that the mate persistently and obstinately refused to do so. The libelant is therefore entitled to recover something provided that the refusal to take these precautions constituted a breach of duty owed by the ship or her owners to the libelant.

It is earnestly contended for the defense that the case presents at most, the negligence of a fellow-servant only, for which there can be no recovery against the ship or owners; and if the mate's obstinacy was only the negligence of a fellow-servant the defense is good. The mere fact that fellow-workmen occupy different grades or departments in the common service, or that one has a higher position or authority over another, does not necessarily make any exception to the usual rule. Coyne v. Railway Co., 133 U.S. 370, 10 S.Ct. 382; Steam-Ship Co. v. Merchant, 133 U.S. 375, 10 S.Ct. 397; Halverson v. Nisen, 3 Sawy. 562; Anderson v. Winston, 31 F. 528; Quinn v. Lighterage Co., 23 F. 363; The City of Alexandria, 17 F. 390-392; The Queen, 40 F. 694-696. attends the seaman wherever he is required to go on shipboard in the condition of the pile of lumber, which his...

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    ...See The Wanderer (C.C.) 20 F. 140; Olson v. Flavel (D.C.) 34 F. 477, overruling Peterson v. The Chandos (D.C.) 4 F. 645; The Frank and Willie (D.C.) 45 F. 494; The Julia Fowler (D.C.) 49 F. 277; John A. Roebling's Sons Co. v. Erickson (C.C.A.) 261 F. 986, 987; Cricket S.S. Co. v. Parry (C.C......
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    ...v. Southern S.S. Co., 321 U.S. 96, 100, 64 S.Ct. 455, 457, 88 L.Ed. 561; and ases cited; The Neptuno, D.C., 30 F. 925; The Frank and Willie, D.C., 45 F. 494; The Julia Fowler, D.C., 49 F. 277; cf. The Edwin I. Morrison, 153 U.S. 199, 210, 14 S.Ct. 823, 825, 38 L.Ed. The liability of the ves......
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    ...seamen, to supply seaworthy appliances. The Noddleburn, D.C., 28 F. 855, affirmed 30 F. 142; The Neptuno, D.C., 30 F. 925; The Frank and Willie, D.C., 45 F. 494; The Julia Fowler, D.C., 49 F. 277; Wm. Johnson & Co. v. Johansen, 5 Cir., 86 F. 886; and see The Columbia, D.C., 124 F. 745; The ......
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