George Leary Const. Co. v. Matson
| Decision Date | 01 February 1921 |
| Docket Number | 1856. |
| Parties | GEORGE LEARY CONST. CO. v. MATSON. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John W Oast, Jr., of Norfolk, Va. (Oast, Kelsey & Jett, of Norfolk Va., on the brief), for appellant.
Daniel Coleman, of Norfolk, Va. (Berry D. Willis and Nathaniel T Green, both of Norfolk, Va., on the brief), for appellee.
Before KNAPP and WOODS, Circuit Judges, and WEBB, District Judge.
In this action for damages for personal injuries the District Court entered a decree in admiralty in favor of the plaintiff for $3,500.
The respondent, George Leary Construction Company, operated a pile driver on a scow afloat in Elizabeth river in the construction of a dock. Charles Matson was one of its men working on the scow, under the direction of Martin as foreman. The scow was equipped with a mast, boom, and engine. At the time of the injury the work in hand was the removal of the pile driver leads to a permanent position at the forward end of the scow. To do this work it was necessary to raise the leads to an upright position, where the hammer would fall on the piles to be driven. The method used was to attach a snatch block on the front of the sill of the scow, run a one-inch line from the nigger head of the engine through the snatch block, and tie the line to two pieces of timber placed behind the ladder braces of the leads. These two pieces, taken from a number lying on the scow, were 2 in. x 10 in. and 4 in. x 6 in., and so placed together they were called a toggle. The pull on the toggle broke it, and one of the pieces struck and injured Matson. By sufficient care in selection pieces could have been found adequate to stand the strain.
So far there was no issue of fact in the testimony. On behalf of the libelant the testimony was to the effect that Matson was a winchman in charge of the engine, and had nothing to do with the selection of the timbers; that one of the planks used was obviously weak from the presence of two holes in it; that Martin, the foreman, persisted in directing the use of this piece of timber against the warning of Silverson, one of the men, that it was not strong enough. On behalf of the respondent there was testimony to the effect that Matson himself and another worker selected the timbers, without suggestion or approval from Martin.
Since the evidence shows clearly that there were at hand other timbers sufficient for the service, it follows that, if Matson or a fellow servant selected unsafe pieces in the exercise of their own judgment, no negligence could be imputed to the respondent. The decree was therefore necessarily based on the conclusion of the District Judge that the testimony on behalf of the libelant was true; that the timbers used were not selected by Matson, that they were obviously unsafe, and that they were used by the direction and with the approval of Martin, the foreman. On this issue of fact, made by the testimony taken in open court, the finding of the District Judge is conclusive.
Under federal statutes, Martin was not a fellow servant of Matson, but a representative of the master. Revised Statutes, Sec. 3 (Comp. St. Sec. 3), gives this general definition:
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