Olson v. Flavel
| Decision Date | 31 March 1888 |
| Citation | 34 F. 477 |
| Parties | OLSON v. FLAVEL. |
| Court | U.S. District Court — District of Oregon |
Syllabus by the Court
Contributory negligence is not a bar to a suit in admiralty for damages on account of a personal injury; and, where the fault which caused the same is concurrent or mutual, the court will apportion the damages according to the equity and justice of the case.
John H Woodward, for libelant.
C. E S. Wood, for defendant.
This suit is brought to recover damages for a personal injury suffered by the libelant while employed as mate on the steam-tug Columbia.
It appears from the pleadings and evidence that on January 8 1887, the defendant was part owner of the tug Columbia, then engaged in towing vessels in and out of the Columbia river when and for some time before the libelant was employed thereon as mate; that on said date, the Columbia came into Astoria from a cruise on the outside, and laid up at her wharf, when the master went ashore, and left the libelant with the aid of the two deckhands, to put a few tons of coal aboard, as usual, preparatory to the next trip.
In doing this, a gang plank about 18 inches wide was placed one end on the deck and the other in a sling over the deck of the tug, which was several feet below the dock, and stayed so as to keep it from swaying to either side. The coal was carried out on the plank in iron wheel-barrows and then dropped down the hatchway into the bunkers.
The libelant wheeled one of the barrows, the handles of which would work up and down three or four inches and cause the barrow to tip from side to side, and on one occasion the libelant thereby lost his balance and fell to the deck of the tug and broke his leg, in consequence of which he was laid up in the hospital, and rendered unable to work for a considerable period.
It was customary to coal this tug in this way, and the master, who was fully aware of the fact, did not interfere to prevent it, or make objection to it. There was also an iron chute on the dock, by means of which the coal could have been sent down into the hold through a manhole in the deck, but that involved the further labor of moving it from where it fell, into the bunkers.
The defense is contributory negligence. In support of it there was an attempt to prove that the libelant was intoxicated at the time of the injury, which failed.
It was also contended that the libelant was not engaged in the performance of his duty as mate, when wheeling coal, and therefore the defendant is not liable for the injury thus sustained.
But in my judgment this proposition cannot be maintained. It may be that he might have stood by and seen the two men put the coal aboard without his help. But certainly he was not to blame for 'lending a hand,' if he was mate. In rendering physical aid in so simple a matter as this, he need not have failed in his special duty, which was the oversight of the business.
And this, I think, is particularly so in the case of a small vessel like the Columbia, with a crew, outside of the engine-room and pilot-house, of only three persons,-- the libelant and two deckhands; the former of whom had come up from the latter position while in the same employ.
The third point made in support of this defense is that the mate had the choice of methods in putting the coal on board, and that, having adopted the dangerous one, he was guilty of negligence, and must bear the consequence. In other words, he might have used the chute, or constructed a gangway of greater width out of the plank at his service, on the wharf; and, if the barrows were out of order, he might have informed the master of the fact, so that others could have been obtained.
Some barrows were exhibited in court, such as the evidence on the part of the defendant tended to prove were used on the occasion, and it was claimed that they were in good condition. They were not broken in any way, and did not appear to be out of order, but on taking hold of them and pressing the handles in an opposite direction, they moved up and down about four inches, owning apparently to the large diameter of the loop at the end of them, in which the axles turned.
I do not think there was any negligence on the part of the libelant in the use of these barrows, so far as their condition is concerned. But I do think it was dangerous to use them on this narrow plank at so...
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