Daub v. Northern Pac. Ry. Co.

• Decision Date: 23 May 1883
• Citation: 18 F. 625
• Parties: DAUB v. NORTHERN PAC. RY. CO.
• Court: U.S. District Court — District of Oregon

18 F. 625

DAUB v. NORTHERN PAC. RY. CO.

United States Circuit Court, D. Oregon.

May 23, 1883

William H. Effinger and Arthur Emmons, for plaintiff.

Joseph N. Dolph and Cyrus Dolph, for defendant.

DEADY J., (charging jury orally.)

The plaintiff in this case brings an action against the defendant to recover damages for an injury he sustained while in its employ on board of the steam-boat Henry Villard, engaged in navigating Lake Pen d'Oreille, occurring, as he alleges upon the twenty-seventh day of January, 1882. He alleges in his complaint that he was employed as a deck hand on this boat, and that one Nat. H. Lane and one N. K. Noon were respectively as master and mate of the vessel, and that the boat being at a point or place or landing on the lake, called Rocky Point, I believe, and about to leave, that he was employed to let go the head-line and that by reason of the negligence of the master and mate he was caught in the line and had his leg crushed; and that he has suffered permanent injury-- is permanently disabled in consequence thereof. The plaintiff also alleges that the mate was incompetent for his employment, and that defendant knew it, and was negligent in employing him and in retaining him in that position. The defendant, answering his complaint denies that the plaintiff suffered the injury complained of at the time and place alleged, and denies that it was caused by the negligence of the master or the mate; denies the mate or master were incompetent for their places, or that if they were that the defendant had notice of the fact; and alleges further that the plaintiff suffered this injury in consequence of his negligence in the discharge of his duty as deck hand. This is substantially the case of the plaintiff as stated by him, and the defense as stated by the defendant.

The plaintiff in this case is a laboring man, engaged, as he told you, in working on railways as a laborer and on steam-boats as a deck hand. The defendant is a corporation, supposed to be possessed of great wealth, power, and resources, but as to whether plaintiff is entitled to recover or not in this action you will consider them as any two ordinary individuals. The plaintiff has no right in this case on account of his calling, or position in life. He is entitled to no privileges, nor benefits, on that account. The defendant, although a corporation, representing great wealth and resources, stands before you as any other individual. It is nothing more than a collection of individuals who have associated themselves together for a lawful purpose, and they are not liable, and ought not to be made to pay any damages at your hands, unless any other collection of individuals would be required to do so under the like circumstances.

A man's liability to pay for a wrong charged to have been committed by him does not depend upon his wealth, but upon his conduct; and this corporation is liable to this plaintiff on account of its conduct, and not on account of its wealth.

However, I suppose it is proper for you, in considering this case upon its general merits, and the probability or improbability of the facts in controversy, to consider that the plaintiff is a poor man, probably without means and without resources to make his case-- obtain evidence, get witnesses, and bring them here; that the defendant is wealthy,-- has resources and means of calling to its aid and assistance all the testimony that may be necessary to make its case. I suppose there is nothing improper in your looking at these two persons in their different situations in life for that purpose, and for that purpose alone.

It appears from the statement of the plaintiff, and other uncontradicted testimony in the case, that this boat was engaged in the navigation of that lake as a part of the enterprise of building the defendant's road. It was removing material from camp to camp, or stores from some place of deposit to the camps, to be used as they might be needed. Capt. Pease was in command. He employed Noon as mate some time in September. The latter ran on the boat until, I think, the twenty-ninth day of December, stopping at this point ordinarily once a day, with Noon as mate; that then, for some reason which is immaterial in this case, he wished to come down to the Dalles, in anticipation of which he had taken Capt. Lane on board of the boat to familiarize himself with the landings and the lake; that Lane handled the boat for a week or so after that time, before Pease left him in charge of the boat as master, while Noon remained.

About the middle of December the plaintiff was employed to work on this boat as a deck hand. He had been engaged at camp 2 at some work on the grade. He states a friend told him that there was a vacant place on the boat as deck hand, and he went to the mate and offered his services. The mate employed him at $50 per month. He continued in this service, with Lane as captain and Noon as mate, until the day that this accident occurred. On that morning, the boat being heavily loaded, and the weather very cold,-- the Thermometer being about 13 degrees below zero,-- the boat started on its journey. It was made fast by the head-line to three piles driven into the water some distance out from the wharf, and by a stern-line, I suppose, to the wharf. The boat was to leave there at a certain time. The mate generally cast off the stern-line, and sometimes he told the captain that he had cast it off, or that it was cast off, but the captain often stepped out from the pilot-house and saw that it was off. If he was not told, he generally looked for himself. That the boat was generally more or less aground, and the only practicable way to get her away from the place was to work her stern around, while holding on to the head-line, until they got her swung enough out in deep water, and then let go of the head-line. On this morning the stern-line was cast off as usual, and the captain commenced to work the boat-- work her out in the stream-- and gave a short, sharp whistle, as the signal to cast off.

The testimony, I think, is uniform that the short, sharp whistle, when leaving a landing, indicates that the head-line, or whatever line the boat is held with is to be cast off. The order may be given to the mate, or may be given directly to the men by this short, sharp whistle. The mate may repeat the order in words, as soon as he hears it, to the men who are charged with the duty of letting go, if he is there; but if he is not present, then I suppose the men understand it; and, at the signal to cast off, immediately do so, whether the mate is present or not.

The plaintiff says in this action that he and one Seymore undertook to cast off the head-line; that they were charged with that duty by the mate, having been told before that they were to cast off the head-line. Counsel for plaintiff, interpreting the testimony, insist that plaintiff was assisting Seymore in casting off the head-line. As I remember the testimony, each assisted the other if necessary-- they two were charged with casting off this head-line. As you remember, this head-line consisted of a cable or rope about two inches in diameter, and probably 140 or 150 feet long. It was fastened to the bitts in the front of the beat-- in front of the capstan. Usually, when they landed at this place, Seymore was on the larboard or port side of the boat, near the coil of rope. He threw the rope around these piles with sufficient force to make the end come around to the starboard side, where it was caught and fastened on the starboard bitt with a hook by the plaintiff. On the other side, where Seymore seems to have been on this occasion, it is fastened by making loops or hitches of the rope around the bitt on the port side. The rest of the rope was lying off some little distance aft and to the port side, coiled up. This was the condition the rope appears to have been in that morning from the fastening the night before.

It is in evidence, also, and uncontradicted, that the captain, from the construction of the vessel, was unable where he was in the pilot-house to see the bitts, or see the men at work at the rope at the bitts. It is in evidence, I believe, that the mate was in the closed fire-room aft of the forward deck while this casting off was being done. The boat began to work out in the stream, and everything went on properly. So far as it appears, the rope on the port side, where Seymore was, had been taken off the bitts until only two or three or four hitches remained; I am not certain which-- I think three remained. It was Daub's duty to take the end of the rope on the starboard side and attend to that-- to attend to the starboard side, where the hook was. As I gather the testimony, it was Seymore's duty to pay out the rope just enough, so that, when the order came to let go, it would be slack where the hook was; so that it could be thrown off and the rope drawn in from around the piles. That was the usual way. Capt. Pease testifies that the rope might be cast off otherwise,-- if it did not slack quick enough to loose the hook, they might throw the rope off the bitts on the port side, where Seymore was, and let it run out the whole 140 feet over the bow of the boat and draw it in on the starboard side from the lake,-- that it might be done that way; but the other was the ordinary way and the most convenient.

There is no witness of what took place at these bitts on this occasion except the plaintiff. Seymore is not here, and I believe no one else saw it. Noon was back in the fire-room and probably could not see Daub. The captain says he could not see him. Daub's statement is, as near as I can get at it, that when the whistle was given to cast off or let go the line, that he could not get the hook out. The...