Cunardc v. Carey

• Decision Date: 15 November 1886
• Docket Number: STEAM-SHIP
• Citation: 30 L.Ed. 354,7 S.Ct. 1360,119 U.S. 245
• Parties: CUNARDCo. (Limited) v. CAREY. 1
• Court: U.S. Supreme Court

119 U.S. 245

7 S.Ct. 1360

30 L.Ed. 354

CUNARD STEAM-SHIP Co. (Limited) v. CAREY.¹

November 15, 1886.

Case by Patrick Carey, defendant in error, against the Cunard Steam-Ship Company, Limited, plaintiff in error, to recover damages for personal injuries resulting to him, while in its employ, from its alleged negligence. The injuries were caused by a bucket loaded with coal, which fell upon Carey while it was being hoisted from the hold of the Batavia, one of the company's steamships, where he was working as a longshoreman in assisting to unload the vessel. At the time of the accident Carey was stationed on the shore-side of the ship, and his work was to attach tubs as soon as they were loaded to the hoisting apparatus, and to detach the tubs when they came down into the hold empty. All of the coal to be shifted was on that side of the ship. There were two falls working,—one on the side where Carey was, and one on the other side of the hatch, where another man was stationed. It was while reaching out to catch and swing over the tub on this latter fall that Carey was struck by the tub which he had just sent up. The accident was caused by the rope breaking.

The apparatus used in hoisting the coal is thus described by one O'Brien, an employe of the company, who was in charge of part of it: 'I was engaged that night at hoisting coal; that is, at the hoisting apparatus, when we were hoisting coal. I was stationed in the scow along-side of the ship. I saw that apparatus,—that gear part of it; the part that carried away was under my eye. The way it was rigged, it was connected to a gaff or a derrick. This derrick was connected to a post or perpendicular,—a mast, like. On this gaff was lashed a block, with a hook or strap, whichever the case may be, and the fall rove through this block, and led down to the scow, and then rove through another block on the scow. Whether this rove through the third block on the ship's rail I disremember. Sometimes we used to have it rove that way, and sometimes we didn't; but it was through two blocks; I am sure of that. One block was placed on the gaff, and the other was placed on one end of the scow.

Page 246-Continued

Then from the block that was on the end of the scow which the fall led through it led to a drum or to a round piece of machinery that was connected to an engine, of course; and this rope was connected onto this drum. That is what it is called, or that is what we commonly call it. I don't know any other name for it. And I stood by this drum with two brakes, of which one was for hoisting up and the other for lowering. I was stationed at the drum. My duty was to go ahead with the machinery when I got the signal from the parties that was attending to the tubs in the ship's hold or deck. That signal was a piece of wood, with some pieces of iron, connected to a line, and that was rove through pulleys, and led into the scow where I could see it. The signal that night was a piece of board or wood with some pieces of iron connected to it to weigh it down. When he was ready to go ahead in the ship the man that stood at the hatch, - the hatch-tender, - he used to pull this rope, and this here piece of wood gave a jerk up, and that signified for me to go ahead.'

At the time the accident occurred the officers of the company connected with the dock where the steam-ship lay were Storey, superintendent; next under him, Craven, foreman stevedore; and next under him, Gerraghty, second foreman or coal boss. Storey, however, was not present at that time, and Craven, being sick, left the management of the unloading to Gerraghty. The remaining facts appear from the charge of SHIPMAN, J., printed below.

At the close of the plaintiff's testimony the defendant moved for a verdict on the evidence, on the grounds (1) contributory negligence of the plaintiff; (2) failure of the evidence to establish negligence on the part of the defendant; and (3) because the injury was caused solely by the negligence of a fellow-servant of the plaintiff, viz., O'Brien. The motion was denied.

At the close of the testimony the following instructions were asked by the defendant:

[Statement of Case from pages 247-250 intentionally omitted] '(1) That in the management and operation of the hoisting apparatus, Gerraghty and O'Brien were the fellow-servants of the plaintiff.

'(2) That if there was negligence on the part of O'Brien and also of Gerraghty, in the operation of the hoisting apparatus, and the use of the fall which parted, and the plaintiff's injury resulted from such negligence, or that of either of them, they being his fellow-servants he cannot recover against the defendant, whether the plaintiff was guilty of contributory negligence or not.

'(3) That O'Brien was a fellow-servant of the plaintiff, and if the injury was occasioned solely by his negligence, the plaintiff cannot recover.

'(4) That Christy Gerraghty was, in the operation of the apparatus, a fellow-servant of the plaintiff, and, if the injury was occasioned solely by his carelessness in operating the apparatus, the plaintiff cannot recover.

'(5) That if the fall was sufficient in itself, and adequate for the work when delivered to the workmen, and the injury occurred through their negligent use of it, the plaintiff cannot recover.

'(6) That the duty of the company to its employes is discharged when its agents, whose business it is to supply the apparatus, exercise due care in the purchase thereof, and keeping it in a reasonably safe condition for use.

'(7) That if when Gerraghty had put the turns in the rope, and wet it, it was then in an apparently good condition, and fit for use, provided it was kept from becoming untwisted, and if Gerraghty directed O'Brien to keep watch of the rope, and if the turns came out again to stop and put them in again, and if thereafter the splice of the rope drew out in consequence of the turns coming out again, O'Brien having failed to see that they were so coming out, and by reason of such drawing of the splice the plaintiff received his injury, such injury was the result of negligence of a fellow-servant, and the plaintiff cannot recover.

'(8) That if the plaintiff had been warned by Craven not to be under the hatch when a draught was coming up, and if the plaintiff was under the hatch when the tub in question fell on him, he cannot recover.'

The instructions were all refused except the third, which was given, with modifications, in the charge. The charge is as follows:

'This is an action against the Cunard Steam-Ship Company to recover damages for an injury to the plaintiff, received while in the employ of the defendant, caused, as it is alleged, by the defendant's negligence in providing unsafe and defective machinery in the work upon which the plaintiff was engaged, and which defective mc hinery, it is also claimed, directly, and without the contributory negligence of the plaintiff, inflicted the injury.

'It is substantially proved that Carey, the plaintiff, was, on November 3, 1880, a longshoreman in the employ of the defendant, and was on the evening of that day set to work, with others, in the hold of the steamer Batavia, to hoist Liverpool coal from the hold to the steerage deck. The coal was shoveled into tubs in the hold, and the loaded tubs were lifted to the deck by hoisting gear operated by steam-power. Carey's business was to attach the loaded tubs to the hoisting rope, and to detach the descending empty tubs from the hoisting rope, and to guide them to the shovelers. The rope, which was lifting a full tub, parted or broke. The tub of coal fell upon the plaintiff's leg, and caused a compound comminuted fracture. Carey was carried to the hospital, where he suffered very great pain for about five months. His life was in very great danger. He finally became a cripple for life, with a stiff knee joint, and his injured leg four and a half inches shorter than the other. The extent of the injury, the extent of his suffering, and the serious and permanent consequence of the fracture are not in dispute.

Page 251-Continued

'The first point in the case is whether Carey contributed to the injury by any negligence of his own; for if he, by his own negligence, directly contributed to the injury, although it was caused by the negligence of another, he cannot recover. If he could, by the exercise of ordinary care on his part, have avoided the injury, he cannot recover. I am requested to charge you, and do so, that if the plaintiff (that is, Carey) in his work failed to exercise the care and caution which a prudent man would exercise under the same circumstances, and but for which failure he would not have been injured, he cannot recover, notwithstanding the defendant was negligent. The negligence which it is claimed existed on his part was the standing under the hatchway when the tubs were ascending and descending, and which it is said he had been warned not to do, because it was a dangerous place. [I do not understand that the defendant's superintendent, Mr. Craven, warned the workmen not to stand in the hatchway because there was danger of falling tubs, but because there was danger of falling lumps of coal, which might be jostled from the tubs in their ascent;] and the plaintiff insists that he was not under the hatchway, but on the edge of it, and just in the place where the exigencies of his work compelled him to be, and in a safe place, unless it should become unsafe by the negligence of the defendant, which the caution of the plaintiff was powerless to guard against.

'If the plaintiff is sent to work in a place where serious calamities might naturally be expected to arise, and where dangerous accidents might be naturally expected to happen, then he is called upon either not to go there, or to exercise extra precaution, or else to bear unrewarded the consequences. [But if he was in a safe place from any such injury, unless that injury should be effected by the unforeseen, and not...