Cyborowski v. Kinsman Transit Co.

• Decision Date: 15 June 1910
• Docket Number: 2,005.
• Citation: 179 F. 440
• Parties: CYBOROWSKI v. KINSMAN TRANSIT CO.
• Court: U.S. Court of Appeals — Sixth Circuit

179 F. 440

CYBOROWSKI v. KINSMAN TRANSIT CO.

No. 2,005.

United States Court of Appeals, Sixth Circuit.

June 15, 1910

F. B Williams, for plaintiff in error.

F. L Leckie, for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and EVANS, District judge.

EVANS District Judge.

The plaintiff, the widow of Theofil Cyborowski, brought this action in the court below to recover $10,000 damages from the defendant for the negligent killing of her husband. The cause of action arose in the state of Pennsylvania, and as the widow of the deceased the plaintiff claims under the laws of that state the right to any damages which are now recoverable. We shall assume that the laws of Pennsylvania support this claim. In her petition she states 'That on or before the 15th day of August, 1907, the said defendant was possessed of and had the management and control of a certain steamboat called Matthew Andrews, then lying alongside a certain dock, known as the Philadelphia & Erie ore dock, in the harbor of the city of Erie, in the state of Pennsylvania, aforesaid. * * * And at the time and place aforesaid the boat aforesaid, while lying at said dock, was being unloaded of her cargo of iron ore, with which it was laden, which was being taken out of the said vessel and placed upon the said dock by means of ore buckets operated by machinery, but which buckets were filled by men working in the hold of the vessel.

'At the time and place aforesaid Theofil Cyborowski, the husband of the plaintiff in this case, and a stevedore, was in the employ of one James Thompson, a contractor on the docks at Erie, and while in the employ of the said Thompson was sent with other men to unload the said steamboat Matthew Andrews as plaintiff is informed and believes, at the request of and on behalf of the agents of the defendant company, in the work of unloading ore from the said boat, it being his particular duty to assist in filling the buckets in the hold of the ship, and while so engaged at about 8 p.m. on the day aforesaid, while working underneath one of the hatches in said boat, a board, commonly known as a trim board, came loose from its fastenings and fell upon and struck him with great force. The said trim board was a board about sixteen (16) feet long, about three (3) feet in width, and about two and one-half (2 1/2) inches in thickness, and was suspended by chains fastened at each end of the board, which chains were intended to be hitched into hooks fastened to the side of the hatchways or openings in the deck.

'During the day prior to the evening on which the accident hereinbefore mentioned occurred, one of the chains which held the trim board in its place was loose, and remained in the said condition, and was left hanging above where the men engaged in filling the buckets with ore were at work, without sufficient support to maintain it there in safety, and, being in this unsafe condition when the husband of the plaintiff in this case was at work at the time and place aforesaid, became unfastened entirely, and fell a considerable distance, and struck him, which falling of the said trim board and the injuries inflicted upon the husband of the plaintiff thereby was occasioned by, through, and because of the negligence and lack of care on the part of the defendant company, its agents and servants in charge of the said boat, and without any fault or negligence on the part of the deceased; that the said deceased, Theofil Cyborowski, had no knowledge of the condition in which the said trim board which fell upon him and caused his injuries was fastened and he did not know that the said board was suspended in the way it was and had never been notified nor in any way made cognizant that he was in danger of being injured by the falling of the same while engaged at his work. * * *

'The plaintiff further avers that the defendant company and its agents and servants who were in authority in the operating and management of said boat were grossly negligent in permitting the said trim board to be hung in such a condition or to be left a long time in such a manner without being securely fastened that it was liable to fall at any time as it did, it being the duty of said defendant and its agents and employes to take proper precaution and use due care for the safety of the men working in the said boat, and alleges that the duty thus owing to the defendant in this case was not performed, and that by reason of the neglect of the said defendant to perform its duty the said accident was caused, and the injuries and death of the said Cyborowski was occasioned thereby.'

The case was tried before a jury, and at the conclusion of the plaintiff's testimony the defendant moved the court to direct a verdict in its favor. The court sustained the motion, and exception was taken.

The principal issue raised by the pleadings was whether the defendant had been guilty of the negligence alleged against it. It appears from the testimony that after the landing of the steamboat at the dock she was turned over to one James Thompson, who had contracted to unload her.

The plaintiff's intestate worked for Thompson, the contractor, and not for the defendant, the owner of the vessel. In carrying on his work Thompson had two shifts or gangs. There were 'twelve men in a gang-- thirteen including the dumper-- three men at a bucket and four buckets in the hold. ' One of these shifts worked in the day and the other at night. Cyborowski was a coal shoveler, and belonged to the night shift. On the day of the accident the day shift had worked until 6 p.m. Then followed an interval of an hour before the night shift went to work at 7 p.m. During that interval the defendant had one watchman, and probably two, on the boat. The vessel was a large one, and appears to have been especially constructed for the transportation of iron ore. Its deck contained 32 hatches, each of which was probably 30 feet long and 10 feet wide. In each of these hatches there swung what is called a trim board, which was 16 to 18 feet long and 30 inches wide, and made up of two or three heavy boards bolted together with iron cleats. This trim board was suspended horizontally upon hooks in the middle of the hatch. As ore was being poured into the vessel when she was loading in the upper lakes, these boards were designed to help trim the vessel by forcing some of the ore to one side and some of it to the other, and thus aid in distributing it in the hold. In one of the hatches one of the hooks which held the trim board in a horizontal position at some time and in some way on the day of the accident became detached, leaving the board hanging from the margin of the hatch down into the hold, which was about 25 feet deep. Cyborowski was in the hold shortly after 7 p.m. assisting in shoveling ore into buckets to be hoisted through the hatch in which the trim board was hanging. He was working under that particular hatch, but some distance from the suspended trim board. A bucket was filled and attached to the hoisting apparatus, which was worked by steam. The signal was given, and with unusual swiftness the hoist was made. The cable and the bucket struck the trim board with great force, and detached it from the other hook. It fell upon the deceased, and inflicted the injuries from which he afterwards died. This hanging trim board was in plain view of those at work, and no testimony seems to indicate that it was of itself dangerous. It only became so if struck by something else.

There was no testimony to show how the trim board was so detached from one of its hooks as to be put in a vertical position. There was no testimony to show precisely when it got into that position nor by whose agency. The first time its derangement was noticed was about 7:05 p.m., soon after the night shift went to work. This was about 15 to 20 minutes before the accident. The attention of the defendant was not shown to have been called to the condition of the trim board until after the accident occurred. The only attempt to do so was by telling the watchman to take the board out of the way the watchman replying that he was about going off duty, but that his 'partner' would be there in a few minutes, and he 'would tell him.' There was no...