Luckenbach SS Co. v. Campbell

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: GILBERT, RUDKIN, and McCAMANT, Circuit
• Citation: Luckenbach SS Co. v. Campbell, 8 F.2d 223 (9th Cir. 1925)
• Decision Date: 19 October 1925
• Docket Number: No. 4648.,4648.
• Parties: LUCKENBACH S. S. CO. v. CAMPBELL.

8 F.2d 223 (1925)

LUCKENBACH S. S. CO. v. CAMPBELL.^*

No. 4648.

Circuit Court of Appeals, Ninth Circuit.

October 19, 1925.

Erskine Wood and Gunther F. Krause, both of Portland, Or., for appellant.

W. K. Royal and M. B. Meacham, both of Portland, Or., for appellee.

Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge.

As the steamship F. J. Luckenbach was proceeding up the Columbia river to Portland, Or., one Campbell, a seaman on board, was ordered by his superior officer to sweep out and clean up the lower decks in the No. 2 hold, in company with other seamen, preparatory to taking on cargo. As Campbell was proceeding to the place in question, he fell through No. 4 hatch, receiving injuries from which he died on the following day. A libel was thereupon filed in the court below by the administrator of his estate against the Luckenbach Steamship Company to recover the resulting damages. The libel charged that the death was caused solely through the negligence and carelessness of the respondent, its officers and agents, in permitting the hatchway to remain open, unguarded, and uncovered between ports, in failing to warn Campbell of the danger of such opening, in failing to furnish sufficient light, in failing to place any railing or guard at or near the hatch to prevent the deceased from falling therein, and in failing to furnish a safe place to work. Upon the final hearing, the court below found that the respondent was negligent as charged, and awarded damages in the sum of $5,000. From the final decree, the present appeal is prosecuted.

The action was based on section 20 of the Act of March 4, 1915 (38 Stat. 1185), as amended by section 33 of the Act of June 5, 1920 (41 Stat. 1007 Comp. St. Ann. Supp. 1923, § 8337a), and the first assignment of error challenges the applicability of that statute to the facts before the court. This question has been answered adversely to the contention of the appellant by the Supreme Court in Panama R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. Under the remaining assignments of error, the appellant contends that the charges of negligence on its part are not sustained by the testimony, that the deceased was guilty of contributory negligence, and that the award of damages is excessive. In discussing the question of negligence, the court below said:

"So far as the negligence of the company was concerned, it seems to me that very clearly appears from the testimony, and it is not necessary to state in detail the testimony in reference to the matter."

There was ample testimony tending to prove that the working place was unnecessarily dark and dangerous, and whether the appellant, the deceased, or his fellow servants were responsible for that condition...