Harris v. Pennsylvania Railroad Co.
| Decision Date | 17 June 1931 |
| Docket Number | No. 3158.,3158. |
| Citation | 50 F.2d 866 |
| Parties | HARRIS v. PENNSYLVANIA RAILROAD CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
D. Arthur Kelsey, of Norfolk, Va. (Kelsey & Jett, of Norfolk, Va., on the brief), for appellant.
T. H. Willcox, Jr., of Norfolk, Va. (Willcox, Cooke & Willcox, of Norfolk, Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and ERNEST F. COCHRAN, District Judge.
An action at law was brought in the District Court by Minnie C. Harris, administratrix of the estate of Ernest L. Harris, against the Pennsylvania Railroad Company, to recover damages for his death on September 29, 1929, while in the defendant's employ as a deck hand on a car float of the defendant then engaged in transporting certain railroad cars from Cape Charles to Little Creek, Va. The action was instituted under the provisions of section 33 of the Merchant Marine Act of 1920 (46 USCA § 688), wherein it is provided that in case of the death of a seaman, as the result of an injury in the course of his employment, his personal representatives may maintain an action for damages, and, in such action, all statutes of the United States conferring or regulating the right of action for death in case of railway employees shall be applicable. The Federal Employers' Liability Act (section 1 45 US CA § 51), is such a statute, and provides that every common carrier by railroad shall be liable in damages in case of death of the employee resulting in whole or in part from negligence of any of the officers, agents, or employees of the carrier. The gist of the action is that the death of Harris was the direct result of negligence on the part of the officers and agents of the defendant, engaged as fellow members of the crew with him at the time of his death.
Harris was 31 years of age, and, until three days before the accident, had been employed in a clerical capacity. On September 26, 1929, he was engaged by the defendant as a deck hand; and on the night of September 29, 1929, was drowned while engaged in the performance of his duties on a car float which was in tow of one of the defendant's tugs. The float was 348 feet in length by 47.9 feet beam. She carried a crew of seven, of whom James A. White, the mate, W. A. Sparrow, the fireman, and Harris, the deceased, were on duty. The mate was in command of the vessel, and, at the time of the accident, was standing in the pilot house of the float which was located on an elevated bridge or structure above the main deck about the center of the vessel. From his station in the pilot house, he had a view of the main deck of the vessel, fore and aft. He was able within a few seconds to step from the pilot house to the side of the vessel, a distance of some 25 feet.
The flotilla had left Cape Charles in tow of the tug at 5:45 p. m., and had arrived at the entrance to Little Creek about 8:45 p. m. When it reached this point, a signal was received from the tug to cast off from the bow of the barge the steel hawser by which she was being towed. This maneuver was necessary in order that the tug might come along side the starboard side of the car float and be made fast to her, and proceed thence to the landing. It was the duty of Harris to cast off the hawser from the bow of the float. He had been joined by the fireman, Sparrow, who had come on deck in order to show Harris how to make fast the lines from the tug when she came along side, and also for the purpose of receiving the stern line from the tug and attaching it to the float. After the tow line had been cast off, Harris and Sparrow walked aft on the vessel from her bow to a cleat on her starboard side, situate about one-half the distance between the bow and the bridge. Sparrow instructed Harris to fasten the bow line of the tug to this cleat when the tug should come along side of it, and then went aft on the starboard side of the car float to receive the stern line from the tug. When he arrived at a point about amidships, he heard a cry, and looking back saw Harris going into the water feet first with the lantern which he had been carrying still in his hand. Sparrow called out to the tugboat "man overboard" so as to stop her from coming back upon Harris. Harris came up from beneath the water at a point about 25 feet aft of Sparrow, as the latter stood amidships. The barge at the time was going ahead about 3 or 3½ miles per hour. Harris called out two or three times "throw me a line." Sparrow testified that he went aft on the barge as quickly as he could and when he arrived at the stern, he picked up a 6-inch hawser and threw it toward the man in the water. At that time Harris was seen about 50 feet astern of the float. The hawser was so heavy that the fireman could not throw it more than 10 feet. Nearby there lay upon the deck a heaving line, estimated to be probably about 6 fathoms or 48 feet in length which could have been thrown much more easily, but the fireman failed to use it. Harris was an expert swimmer, and, after he reappeared on the surface of the water, he seemed to be swimming or treading water.
No other effort was made to throw a line or other device to Harris while he was in the water. When Sparrow called out "man overboard," the mate stepped out of the pilot house and walked across to the starboard side of the boat, and, looking over the side, saw some bubbles which might have indicated that some one had fallen in. He testified that he had some conversation with Sparrow as to the whereabouts of the man overboard, but this testimony is not substantiated by Sparrow. There was a life buoy kept near the pilot house which White could have secured and thrown into the water in 3 or 4 seconds, but he made no attempt to do so, and, not seeing Harris in the water, he walked back into the pilot house after a couple of minutes without further ado. His explanation is that it was necessary for him to be in the pilot house as the flotilla was approaching certain bridges 400 or 500 yards away. It seems clear, however, that irrespective of this duty, it would have been easy for him to have thrown a buoy or life ring upon the water during the period while he was at the starboard side of the ship.
In the meantime, the tug backed toward the spot where Harris had fallen overboard, and certain members of the crew called out and were ready to throw a life line or life belt to him, but, not seeing him, nothing was done. After staying at the point of the accident some ten minutes, the tug proceeded with the car float to the dock. Several days later Harris' body was found on a neighboring shore about 50 yards from where he was last seen in the water.
At the close of the plaintiff's case in the trial below, the defendant made a motion for a directed verdict in its behalf,...
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