In re California Nav. & Imp. Co.

• Citation: 110 F. 670
• Decision Date: 03 September 1901
• Docket Number: 11,801.
• Court: U.S. District Court — Northern District of California
• Parties: In re CALIFORNIA NAV. & IMP. CO.

110 F. 670

In re CALIFORNIA NAV. & IMP. CO.

No. 11,801.

United States District Court, N.D. California.

September 3, 1901

Woods &amp Levinsky, F. D. Nichol, and W. B. Nutter, for petitioner.

Jacobs & Flack, for claimant Susie P. Blunt, administratrix.

Samuel Knight, for claimant Guseppe Foppiano.

William H. Jordan and Jessie Watson, for claimant Johanna Daly administratrix.

Reddy Campbell & Metson, for claimant Augustina Brizzolara administratrix, and Peter Tulan, administrator.

DE HAVEN, District Judge.

On November 27, 1898, the steamer T. C. Walker was owned by the petitioner, the California Navigation & Improvement Company and employed by it as a common carrier of passengers and freight between the ports of San Francisco and Stockton, in the state of California; and on that day, while proceeding on her voyage between these ports, the steam drum attached to her boilers exploded, causing the death of certain of her passengers and members of the crew, and injuring others. Actions were brought against the petitioner to recover damages for personal injuries and the loss of life caused by such explosion, and the petitioner thereupon commenced this proceeding, contesting its liability for damages, and at the same time asking for a limitation of its liability, under sections 4283-4285 of the Revised Statutes, and acts amendatory thereof, in the event that the court shall adjudge that it is liable for such damage. The value of the steamer and freight pending has been appraised, under admiralty rule No. 54, at $23,251, and G. Foppiano, a passenger, and the personal representatives of W. A. Blunt, Luigi brizzolara, passengers, and of John T. Tulan, the master, and Jeremiah Daly, a fireman, on the T. C. Walker, have answered the petition, and presented their respective claims for damages, and the proofs in support thereof.

1. The boilers and the drum of the T. C. Walker were constructed in the year 1893, and on May 14, 1898, were inspected by the United States inspector of boilers, and a certificate issued by him permitting their use in the navigation of the steamer for a term of one year with a steam pressure of 170 pounds to the square inch. The evidence also tends to show that at the time of the explosion the steam pressure in the boilers did not exceed 157 pounds. It was also shown that a few weeks before the accident a leakage was observed in one of the girth seams of the drum, but no examination was made for the purpose of determining the condition of the drum at that point, or to ascertain the exact cause of such leakage; and the fact that such leakage had been discovered was not brought to the attention of the master of the steamer, or any managing agent of the petitioner. It may be stated as a well-settled principle of law that the obligation of a common carrier of passengers is to carry them safely, unless prevented by some cause against which human foresight and diligence cannot guard. Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115; The City of Panama, 101 U.S. 453, 25 L.Ed. 1061; Railroad Co. v. Derby, 14 How. 468, 14 L.Ed. 502; Shear. & R. Neg. (5th Ed.) Sec. 495. And in the determination of that branch of the present case relating to the claims of Foppiano, passenger, and of the personal representatives of Blunt and Brizzolara, passengers killed, the mere fact of the bursting of the steam drum is prima facie evidence of negligence upon the part of the petitioner or its employes, and casts upon it the burden of proving that such explosion could not have been prevented by reasonable care; that is, by the exercise of the highest degree of care on its part. Caldwell v. Steamboat Co., 47 N.Y. 282; Dunlap v. The Reliance (C.C.) 2 Fed. 249; Boyce v. Stage Co., 25 Cal. 460; Yoemans v. Navigation Co., 44 Cal. 71. This rule of evidence is based upon the principle 'that, where an act takes place which usually, and according to the ordinary course of things, would not happen if proper care was exercised, it is presumed that such care was not observed. ' Caldwell v. Steamboat Co., 47 N.Y. 282. The voluminous evidence taken before the United States commissioner, upon which this case was submitted for decision, has been fully considered, and, in my opinion, is not sufficient to rebut the presumption of negligence which the law, in the first instance, imputes to the petitioner from the fact of the explosion. The boilers and drum had been in use for a number of years, and there is nothing in the evidence tending to show that the bursting of the drum was caused by a latent defect therein,-- such a defect as could not have been previously discovered by examination and the exercise of that high degree of care which is required of those in charge of machinery of that character when used in vessels engaged in the transportation of passengers. Blunt, one of the passengers killed, was riding on a free pass, but, in the absence of a special agreement by which he assumed all risk of accident from the negligence of the servants of petitioner, the obligation of the petitioner to carry him safely was precisely the same as that which it owed to the passengers who had purchased tickets. The New World v. King, 16 How. 469, 14 L.Ed. 1019; Railroad Co. v. Derby, 14 How. 468, 14 L.Ed. 502; Todd v. Railroad Co. (C.C.) 17 F. 671. It follows from what has been said that Foppiano and the personal representatives of Blunt and Brizzolara are entitled to recover damages from the petitioner.

2. The claim of the administratrix of the estate of Jeremiah Daly, deceased, rests upon principles of law peculiarly applicable to the relation of master and servant. Daly was employed as a fireman on the T. C. Walker, and while engaged in his work was killed by the explosion to which reference has been made. The petitioner, as his employer, owed to the deceased the duty of exercising reasonable care to make the place where he was required to work safe; and this, of course, would include the duty to exercise reasonable care to ascertain whether there was any defect in the steam drum which might endanger his life while at work. 'A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work or by which he is to be surrounded, shall be reasonably safe. ' Railroad Co. v. Baugh, 149 U.S. 368-386, 13 Sup.Ct. 914, 921, 37 L.Ed. 772, 780. This rule imposes upon the master the duty of exercising 'reasonable care in furnishing suitable machinery and appliances for carrying on the business for which he employs the servant, and in keeping such machinery and appliances in repair, including the duty of making inspections, tests, and examinations at the proper intervals. ' Railway Co. v. Daniels, 152 U.S. 684, 14 Sup.Ct. 756, 38 L.Ed. 597. The master cannot escape from the obligation of this positive duty by the delegation of its performance to an agent or servant employed by him. In the language of the court in Corcoran v. Holbrook, 59 N.Y. 517, 17 Am.Rep. 369:

'As to acts which a master or principal is bound as such to perform towards his employes, if he delegates the performance of them to an agent, the agent occupies the place of the master, and the latter is deemed present, and liable for the manner in which they are performed.'

That such is the law upon this point is well settled. Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Fuller v. Jewett, 80 N.Y. 46, 36 Am.Rep. 575; Ford v. Railroad Co., 110 Mass. 240, 14 Am.Rep.

598. The burden of proving that the petitioner was negligent in the discharge of its duty towards Daly as above defined, and that such negligence was the proximate cause of his death, is upon the administratrix of his estate. Shear. & R. Neg. (5th Ed.) Sec. 222. And the rule is that in actions in which the servant or his personal representative seeks to recover damages from the employer upon the ground of alleged negligence the negligence of the latter is not established by simply proving the naked and unexplained fact of the occurence of the accident which caused the injury complained of. Railway Co. v. Daniels, 152 U.S. 684, 14 Sup.Ct 756, 38 L.Ed. 597; Railway Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136; Railway Co. v. Salmon's Adm'x, 11 Kan. 83. The reason why further proof is required in such actions to establish the liability of the employer is that an accident may be caused by want of due care upon the part of the injured servant, or solely by the negligence of a fellow servant at the time, in either of which cases the employer would not be liable for the injury. Under the rule stated it was therefore incumbent upon the administratrix of Daly to prove, not only the fact of the explosion, but, in addition thereto, that petitioner was negligent either in the selection of the steam drum in the first instance, or in failing to use ordinary care to keep it in a reasonably safe condition for use, and that such negligence was the proximate cause of the explosion. It is not claimed, and there is nothing in the evidence tending to show, that the drum, when originally placed in the steamer by the petitioner, was not in all respects safe and sound. Was, then, the accident caused by the subsequent negligence of the petitioner in not keeping the drum in a proper state of repair? I think the evidence shows that the explosion was due to the defective or weak condition of the drum. There is no escape from this conclusion without rejecting the uncontradicted testimony of the witnesses Cates and Murray that just prior to the explosion the steam pressure on the boilers was not more than 157 pounds, being 13 pounds less than they were allowed to carry. The bursting of the steam drum under such a moderate pressure of steam shows that it had become weakened from...