New York & T.S.S. Co. v. Anderson

• Decision Date: 16 February 1892
• Docket Number: 42.
• Citation: 50 F. 462
• Parties: NEW YORK & T.S.S. CO. v. ANDERSON. (No. 42.)
• Court: U.S. Court of Appeals — Second Circuit

50 F. 462

NEW YORK & T.S.S. CO. v. ANDERSON. (No. 42.)

No. 42.

United States Court of Appeals, Second Circuit.

February 16, 1892

Butler Stillman & Hubbard, (Wilhelmus Mynderse, of counsel,) for plaintiff in error.

George L. Carlisle, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM.

This is a writ of error by the defendant in the court below to review a judgment of the circuit court, entered upon the verdict of a jury for the plaintiff. The plaintiff was a seaman, one of the crew of the steamship San Marcos, and while he was helping discharge cargo at the port of Key West received severe injuries by being struck by some of the cargo while it was being raised from the hold. The plaintiff recovered upon the theory that his injuries were caused by the carelessness of a fellow servant,-- the winchman who had the management-- and that the defendant was negligent in that the winchman was incompetent for his place. Error is assigned because the trial judge refused to direct the jury to find a verdict for the defendant, because he refused to give certain specific instructions to the jury, requested by the defendant, and because he refused to set aside the verdict as contrary to evidence upon the motion of the defendant for a new trial. The plaintiff was stationed on the upper deck, to receive the cargo as it reached him, loaded in slings, from the hold, conduct the slings to the side of the vessel, and start the load down the skids to the dock. Other men, some from the crew and some from the shore, were at work in the hold, filling the slings with cargo; and one Bronson a man from the shore, had charge of the steam winch by which the cargo was hoisted and lowered. Bronson's winch was between decks, and it was his duty to operate it according to signals to be given to him by the plaintiff by blowing a steam whistle. The signal to raise a load was one blast, the signal to stop was one blast, and the signal to lower was two blasts. According to the testimony of the plaintiff, after the work had proceeded for an hour or more, and when a sling of cargo had been hoisted from the hold and conducted by him to the rail of the vessel, he blew one blast of the whistle as a signal to raise it so as to carry it over the rail. He testified that this signal was obeyed, and he then blew one blast to stop, which was not heeded, whereupon he repeated the signal almost instantly, but that Bronson, instead of stopping, lowered the sling load, and it struck the plaintiff, and led to his injuries.

The only testimony on the trial to indicate that the winchman was incompetent, because of deafness or otherwise, was given by the plaintiff himself. He testified that before commencing work Bronson told him to blow the whistle very loud, as he was deaf, and could not hear very well; that previous to the accident, while the cargo was being unloaded, some barrels were broken, because they were lowered too fast, and at that time he heard a conversation between the master of the steamship and two men standing by, in which the master asked who was at the winch, and one of them told him that the winchman did not understand how to drive a winch, and was deaf. He also testified that he could see that Bronson was not used to driving a winch, because 'he seemed to be scared of the steam, and didn't know how to use it. ' Everything thus testified to by the plaintiff was contradicted by witnesses for the defendant, as was also his testimony respecting the circumstances of the accident.

The judge instructed the jury, in substance, that the plaintiff was not entitled to recover unless they found that the winchman was incompetent, either from deafness or otherwise to an extent rendering him unfit for the duty to which he was assigned. He also instructed them, in substance, that the plaintiff was not entitled to recover if he was negligent himself in continuing to work after he had information of the deafness or incompetency of the winchman. No exceptions were taken by the defendant to the instructions given, but the defendant requested the judge to give three additional...