Lincoln v. Cunard S.S. Co.

• Decision Date: 09 February 1915
• Docket Number: 73.
• Citation: 221 F. 622
• Parties: LINCOLN v. CUNARD S.S. CO.
• Court: U.S. Court of Appeals — Second Circuit

221 F. 622

LINCOLN v. CUNARD S.S. CO.

No. 73.

United States Court of Appeals, Second Circuit.

February 9, 1915

Lord Day & Lord, of New York City (Howard Mansfield, Lucius H Beers, and Allen Evarts Foster, all of New York City, of counsel), for appellant.

William H. L. Lee, of New York City (Alexander Cameron, of New York City, of counsel), for appellee.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

LACOMBE Circuit Judge.

Libelant was in charge of the barge Harsimus, owned by the Berwind-White Coal Company, which was delivering coal to the steamer. The barge was placed alongside of the steamer, made fast as was supposed at the bow, and Fill was engaged in making fast at the stern when some one called to him that his bow line was rendering. He at once hurried along the deck to the forward bitt, and while there engaged with the line suddenly and without warning there was thrown upon him out of an exhaust orifice in the side of the steamer a discharge of steam and boiling water, which knocked him down and scalded him, producing severe injuries.

The complaint averred that it was the custom in the port of New York to protect these outlets for steam and hot water in some way, but that is unimportant. The requirements of ordinary care and prudence would impose upon defendant the duty of so managing discharges of such dangerous substances from the side of its vessels as not to throw them suddenly and without warning on the deck of other vessels, brought alongside at respondent's request, endangering persons engaged thereon in legitimate occupations. As the District Judge held, this is a case of res ipsa loquitur, and in the absence of any explanation on behalf of the steamship the necessary conclusion is that some one in respondent's employ was negligent-- indeed grossly negligent-- in thus exposing the libelant to serious injury without warning him of what was to be done. No contributory negligence by libelant is shown, or indeed suggested.

It is contended that the laches of the libelant has been such as to defeat recovery in this proceeding. The accident causing the injuries occurred November 8, 1908. The libel was served June 23, 1913. This was 4 years, 7 months, and 15 days after the cause of action arose. The New York Code of Civil Procedure provides that an action to recover damages for personal injuries must be commenced within 3 years after the cause accrued. It further provides:

Section 405: 'If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.'

The rule in cour...