Olson v. Oregon Coal & Navigation Co.

• Decision Date: 01 October 1900
• Docket Number: 589.
• Parties: OLSON v. OREGON COAL & NAVIGATION CO.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F. 574

OLSON v. OREGON COAL & NAVIGATION CO.

No. 589.

United States Court of Appeals, Ninth Circuit.

October 1, 1900

H. W Hutton, for appellant.

Geo. W Towle, Jr. for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The questions presented by this appeal is as to the sufficiency of the libel, the exceptions to which were sustained by the court below. 96 F. 109. The suit was for damages for injuries sustained by the libelant in a fall through an open hatchway in the deck of the steamer Empire, on which he was employed in the capacity of ship carpenter. It is alleged in the libel that the defendant corporation is and was, at the times mentioned in the libel, the owner of and engaged in operating the steamer named; that on the 22d day of February, 1897, the steamer left the Broadway wharf, in the city and county of San Francisco, Cal., bound on a voyage to Coos Bay, in the state of Oregon, for a cargo of Coal; that she had no cargo on board, and was by reason of that fact 'liable to sudden, unusual, and violent motions when in waters agitated by the winds'; that at the time of her departure the bar off the harbor of San Francisco was breaking badly, and that although there were covers on board the vessel for the hatches the ship crossed the bar with her after hatch open; thereby making the deck of the steamer unsafe and dangerous, and that while the libelant was performing his duty upon the steamer as ship carpenter, in going from the after part of the vessel to the forward part, he, without any fault on his part, was thrown from his feet by a roll of the steamer, and, by reason of the after hatch being uncovered, he was thrown down that hatch, and fell a distance of about 30 feet, onto the shaft alley of the steamer, and thereby suffered a compound comminuted fracture of the right thigh, by reason of which he was compelled to go to the United States marine hospital in the city and county of San Francisco, and has been there confined ever since, and has suffered great physical pain and mental anguish by reason of his injury, which is permanent, and totally disables him, and which will forever prevent him from following his occupation as ship carpenter, or any other occupation, to his damage in the sum of $15,000.

There is no averment in the libel tending to show that the ship was not properly equipped with all necessary and appropriate appliances, or that she was not properly manned, or not entirely seaworthy, or that there was any neglect on the part of the defendant in the selection of the officers or crew of the ship; and, although there is a general allegation of negligence on the part of the defendant, the libel undertakes to and does specify the particulars in which it is claimed the defendant was guilty of negligence, consisting only, as has been seen, in the leaving open of the after hatch through which the libelant fell. As the defendant is alleged to be a corporation, it is, of course, obvious that it could only operate the ship through its agents or servants, so that the negligence with which it is charged must necessarily have been the personal negligence of some one employed by it. Assuming, therefore, that the mere leaving open of the hatch, under the circumstances stated, can be properly held to have been negligence, it must necessarily have been the negligence of some officer or member of the crew of the...