Green v. Standard Wholesale Phosphate & Acid Works

• Decision Date: 21 December 1928
• Citation: 29 F.2d 746
• Parties: GREEN v. STANDARD WHOLESALE PHOSPHATE & ACID WORKS et al. BURTON'S ADM'R v. SAME. BURTON et al. v. SAME.
• Court: U.S. District Court — District of Maryland

29 F.2d 746 (1928)

GREEN v. STANDARD WHOLESALE PHOSPHATE & ACID WORKS et al.

BURTON'S ADM'R v. SAME.

BURTON et al. v. SAME.

District Court, D. Maryland.

December 21, 1928.

Glick & Schlossberg and George Forbes, all of Baltimore, Md., for libelant Green.

Henry L. Wortche, George Forbes, and Paul Berman, all of Baltimore, Md., for libelant administrator.

Mapp & Mapp, of Accomac, Va., and Miles & Edgett, George Forbes, Henry L. Wortche, and Paul Berman, all of Baltimore, Md., for libelants Burton.

Fendall Marbury, L. Wethered Barroll, Wm. L. Marbury, and Lord & Whip, all of Baltimore, Md., for respondents.

SOPER, District Judge.

There are three cases before the court at this time: One case on behalf of John Edward Green against the Standard Wholesale Phosphate & Acid Works; one case on behalf of the estate of Lee Burton against the same defendant; and a third case on behalf of the parents of Lee Burton against the same defendant. Other defendants were joined in the pleadings, but we are concerned here now only with the liability of the Standard Wholesale Phosphate & Acid Works. These cases have been tied together obviously because the injuries suffered by Green and Burton were received at or about the same time.

There is no substantial issue of fact between the parties. We know that the Standard Company manufactured certain goods and then shipped them on board the Emperor of Halifax, and that on this occasion it also acted as stevedore employing the libelants, Green and Burton, to help put the goods aboard the ship.

We furthermore know that the men were injured in the course of that employment, and there is no real dispute as to the cause of the injury. We know that on February 9, 1927, one of the respondent's employés, a colored stevedore, named Williams, went down through No. 1 hatch into the hold and was overcome by carbon dioxide gas. It is conceded that this dangerous gas was in the hold of the ship and that Williams was overcome by it. Williams is not before the court, but it is perfectly clear that the case should be decided, so far as the liability of the respondent is concerned, as if it were the case of Williams. The two men who are actually before the court are men who were injured in an attempt to rescue Williams. One went down into the hold to tie a sling about the injured man so as to have him brought up, and when he failed to tie the rope properly, a second went down to help him. The injured man was safely brought up, but the two men who bravely went to his rescue were injured, and one of them, Burton, subsequently died of his injuries. Then we have the fact, of which we are all glad to make mention, that there was still a third brave man, Theodore Anderson, who went down at considerable danger to himself and rescued the two men who had themselves gotten into danger by trying to rescue the first injured man.

There are only two points upon which there is any dispute as to the actions of the injured parties. The first is whether Green and Burton were ordered to go down into the hold to rescue Williams, or whether they went down voluntarily. It is not necessary to decide this issue of fact, because the liability of the respondent is the same in either case — if there is any responsibility at all. The court is inclined to think that these men were quite willing and ready to go and needed no orders; in other words, that they were volunteers. The second point of difference in the testimony is the method by which the two injured men attempted to leave the hold after they had successfully tied Williams to the sling. Green says that they endeavored to go up the ladder, and that Burton, who was first on the ladder, was overcome before he reached the top, fell, and in his fall carried Green to the bottom of the hold. Testimony of the defendant's witnesses is to the effect that they did not use the ladder, but got hold of the rope to which Williams had been attached and tried to come up with it when it was hauled up by the winch; but fell in the attempt. This would not be a particularly easy issue of fact to decide. But it is not necessary to decide it, and for the purposes of this case it may be assumed that the men came up as the defendant's witnesses described; because it would not be possible to say that there was any negligence on their part under the circumstances, if they came up that way. Williams had been overcome in a very few minutes, and it was common sense for his rescuers to get out as soon as they could, and it would be a harsh conclusion to require of them, in the excitement of the moment, the same deliberation and care as if they had had plenty of time. It would be a rather silly thing for a man to walk down a ladder from the second story of his house if he could go down the stairway, but nobody would say he was negligent in using a ladder if his house was on fire. It is safe to assume in this case that the respondent is right in both of these particulars, that the men went down voluntarily and not because of orders, and that they came up, or attempted to come up, by clinging to the rope.

Now it was said above that the liability of the Standard Company in these cases should be determined by answering the question: Would the Standard Company have been liable to Williams had he been injured? Counsel do not seriously dispute this point, but agree that the principle laid down in the case of the Maryland Steel Co. v. Marney, 88 Md. 482, 42 A. 60, 42 L. R. A. 842, 71 Am. St. Rep. 441, is the true principle. That was a case in which a man was injured when, with reasonable care, he was seeking to save the life of another who was put in danger by the defendant's negligence. And the court held that although the plaintiff voluntarily left a position of safety and exposed himself to danger, he was not, under those circumstances, guilty of contributory negligence.

The same principle was followed in Dunagan v. Appalachian Power Co. (C. C. A.) 11 F.(2d) 65. So that it follows that neither Green nor Burton should be deprived of the right to recover simply because they voluntarily went into danger in this case.

Was it then the duty of the Standard Company to make certain that there was no dangerous gas in the hold of the ship? Did the company, in accordance with the well-understood rules of law, provide a safe place for these men to work, and would the company have been liable to Williams? It has been pointed out by counsel for the respondent that, under such circumstances, an employer is not an insurer. The rule has been stated in one place, among many, in the case of Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361, that while the employer is bound to provide a safe place in which the employé is to work, and that is a positive duty which may not be delegated to another, it is also true that there is no guaranty by the employer that the place shall be absolutely safe. "He is bound," said the court, "to take reasonable care and make reasonable effort, and the greater the risk which attends the work to be done and the machinery to be used, the more imperative is the obligation resting upon him." That general language has its importance here because the parties were dealing with something that was known to be highly dangerous, and it is obvious that any reasonably prudent man would take every precaution in such a case to protect his employés from harm. That does not mean, of course, that any higher degree of care should be exercised than reasonable care, for all will agree that any ordinarily prudent man, dealing with a substance which has fatal possibilities, will use the very highest degree of care to prevent loss of life.

The contention of the libelants is that the place in...