Dangelo v. John W. Danforth Co.

• Decision Date: 12 December 1911
• Citation: 192 F. 678
• Parties: DANGELO v. JOHN W. DANFORTH CO. et al.
• Court: U.S. District Court — Western District of New York

192 F. 678

DANGELO v. JOHN W. DANFORTH CO. et al.

United States District Court, W.D. New York.

December 12, 1911

This is a libel in personam to recover damages against the John W Danforth Company, Benjamin L. Cowles, and the C. H. Starke Dredging Company for negligently causing the death of Nicolo Dangelo by the capsizing of a mud scow on September 16, 1910 in Buffalo Harbor near the north entrance to the river. The material facts are as follows: The Danforth Company was engaged in making excavations on land near the Evans slip in the city of Buffalo and the debris was loaded by its workmen onto a scow which had been procured by the respondent Cowles at the request of the Danforth Company, and, under an arrangement that Cowles, who was the owner of the tugboat Warnick, should tow the scow, when loaded, to the dumping ground in Lake Erie, where it was to be emptied by the deceased and one Maisano, both of whom were laborers in the employ of Danforth & Co. The scow in question-- concededly an old one, owned by the state of New York-- had two pockets of about 24 feet in length by 12 feet in width, her length being 72 feet over all, beam 17 feet 6 inches, and depth of hold 7 feet 6 inches. She was small for navigation in the lake or outer harbor and had been used chiefly in the Erie canal. After loading her with the excavated material, the deceased and Maisano were directed by the foreman of Danforth & Co. to go aboard and to accompany her to the dumping ground. As they were unfamiliar with work of this character, the foreman Wood, instructed them as to the manner of operating the dumping appliance. The scow was fastened by a 25-foot line to the stern of the tug and towed out of Evans slip into Buffalo creek where the master of the tug Warnick, perceiving that the forward end of the scow was lower than the rear, turned her around so as to bring the high end forward with the intention of making towage easier. The tow had proceeded but a short distance in the direction of the entrance to the harbor when various witnesses who have testified herein, standing on the north and south banks of the river, which at this point was 250 feet wide, noticed that the scow had the appearance of being overloaded. McGillivray, a disinterested witness, testified that the scow had a curved appearance; that in the middle she was nearly flush with the water, while at the ends, directly after entering the creek, she had freeboard of from 6 to 8 inches only. There is reliable testimony that when she was opposite the coal trestle, a short distance from the entrance to the slip, her front end was under water. About this time the tug Sioux passed down the channel intending to go to the outer breakwater. Without blowing any signal she passed the scow and tug when they were about 250 feet outside the south pier, where the channel had gradually widened to over 400 feet. She did not pass parallel, but altered her course a little to the southward and her passage was effected to the left of the tow. Her wave displacement caused the scow to roll and overturn, and the two men aboard her were precipitated into the water, and Dangelo drowned. The evidence is conflicting as to her distance from the scow when she passed, and her speed is variously estimated at from 4 1/2 to 10 miles an hour. But a fair preponderance of the testimony shows the distance apart to have been not more than 150 feet, and her speed between 6 and 7 miles an hour.

Lanza & Miceli (White & Stanley, of counsel), for libelant.

Hoyt & Spratt, for respondent John W. Danforth Co.

MacGregor & Stone (George Clinton, of counsel), for respondent Cowles.

Brown, Ely & Richards, for respondent C. H. Starke Dredging Co.

HAZEL District Judge (after stating the facts as above).

Libelant's contention is that the respondents are joint tort-feasors, and that each owed the deceased a positive duty irrespective of their duties toward each other; that the Danforth Company was negligent in having failed to provide the deceased with a safe and suitable place in which to work, in that the scow leaked, was overloaded, and generally unseaworthy; that the respondent Cowles was negligent in that the master of the tug towing the scow should have perceived her unseaworthy and unfit condition; and that the Starke Dredging Company, the owner of the tug Sioux, was negligent in that the tug violated the rules of navigation as to speed and caused her swell to strike the scow and capsize her.

The respondents deny responsibility on various grounds. The Danforth Company claims that the decedent became the servant pro hac vice of Cowles who furnished the scow; Cowles claims that the decedent continued in the employ of the Danforth Company, that the scow was hired by it, and, furthermore, that she was not overloaded or unseaworthy, her capsizing being caused solely by the heavy swell of the tug Sioux; while the dredging company claims that the Sioux was not improperly navigated, that her swell was not the proximate cause of the capsizing of the scow, that she was navigated within her rights and the limitations as to speed prescribed by the Secretary of War, and urges that the proximate cause of the overturning of the scow and consequent death of Dangelo was her unseaworthiness.

The determination of the questions presented depends upon the facts and surrounding circumstances of the hiring of the scow, her condition as to unseaworthiness; and upon the speed of the tug Sioux, the character of her displacement waves, and whether, in view of the situation, she should have observed the overloaded condition of the scow and navigated accordingly. As to the hiring of the scow, the evidence shows that she was obtained by Cowles at the instance of Danforth & Co., who...