Gaderson v. Texas Contracting Co.
| Decision Date | 02 December 1924 |
| Docket Number | No. 4350.,4350. |
| Citation | 3 F.2d 140 |
| Parties | GADERSON v. TEXAS CONTRACTING CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wilford H. Smith, of Houston, Tex., for appellant.
Mart H. Royston, of Galveston, Tex., for appellee.
Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.
This was a libel in admiralty by the appellant, the widow of James Gaderson, deceased, against the appellee, a contracting stevedore, to recover damages for the death of the deceased while he was engaged in building a structure called a grain feeder on a ship located at a pier in the port of Galveston; the deceased at the time of his death being the foreman or "straw boss" of a gang employed by the appellee and assigned to the task mentioned. The libel contained allegations to the effect that the death of the deceased was due to a fall caused by the careening, tilting, or turning of a strongback or beam on which he was standing while at work, and that the unsteadiness of the strongback or beam was due to appellee's negligence in failing to have it bolted or fastened, so as to make it steady.
The evidence in the trial was adduced in the presence of the trial judge. The appellant undertook to support the allegations of the libel as to how the deceased came to his death by the testimony of two of his coemployees, who were engaged with him in the same task. Only one of those witnesses claimed to have seen the deceased when he fell, or to know what caused him to fall. There was evidence tending to discredit the testimony of that witness. The trial judge's memorandum opinion shows that he did not credit the testimony of that witness so far as it was uncorroborated. Testimony of the other witness was to the effect that, at the time of and prior to the deceased's fall, witness had one foot on the same beam upon which the deceased had one of his feet; that witness was not looking in the direction of the deceased when the latter fell, and did not know what made him fall; that prior to deceased's fall, and during the time witness and the deceased were using the beam as a support, it rocked, and did so at any time it was stepped on; and that the deceased was aware of the danger to which he was exposed when he undertook the task in which he was engaged when he fell, deceased having undertaken that task after it was disclosed that another member of the gang was afraid to do so.
The trial judge's memorandum opinion contained the following:
"Either...
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...60 F.2d 893, The Scandinavia, D.C.Me., 156 F. 403, and other authorities referred to in those opinions. See also: Gaderson v. Texas Contracting Co., 5 Cir., 3 F.2d 140. Appellee contends that the defense is not applicable, relying upon Socony-Vacuum Oil Co. v. Smith, supra, 305 U.S. 424, 59......
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...risk and acts of fellow servants. The doctrine of assumption of risk in admiralty has been applied in this circuit. Gaderson v. Texas Contracting Co., 5 Cir., 3 F.2d 140. Also the fellow servant rule, as to injuries on vessels. Pacific Mail S. S. Co. v. Beneby, 5 Cir., 250 F. Libellant's pr......