Pioneer S.S. Co. v. Jenkins

• Decision Date: 11 July 1911
• Docket Number: 2,113.
• Citation: 189 F. 312
• Parties: PIONEER S.S. CO. v. JENKINS.
• Court: U.S. Court of Appeals — Sixth Circuit

189 F. 312

PIONEER S.S. CO. v. JENKINS.

No. 2,113.

United States Court of Appeals, Sixth Circuit.

July 11, 1911

S. H. Holding (Goulder, Day, White & Garry and Holding, Masten Duncan & Leckie, on the brief), for plaintiff in error.

R. B Newcomb (Skiles, Green & Skiles and A. G. Newcomb, on the brief), for defendant in error.

Before SEVERENS and KNAPPEN, Circuit Judges, and SANFORD, District judge.

KNAPPEN Circuit Judge.

The defendant in error, who was plaintiff below, sued plaintiff in error, as defendant, on account of injuries received by the plaintiff in falling through an open hatchway and into the hold of the steamship D. R. Hanna, owned by the defendant, and controlled and managed by agents doing business at Cleveland. Shortly before the accident the steamer had been made fast to the dock of the Pittsburgh Coal Company, at Cleveland, for the purpose of being there loaded by the Coal Company with a cargo of coal. The loading was being done by a machine belonging to the Coal Company and located upon its dock, by means of which machine cars of coal were dumped into a chute and carried therethrough into the hold of the vessel. Plaintiff was trim operator, in the employ of the Coal Company, upon the loading machine, his station being upon a platform several feet above the deck and amidships from which station the trimming was directed by means of machinery there worked by the operator in connection with a telescope communicating with the chute and extending through the hatchway. The Hanna was a large vessel, having 32 hatches, each 10 feet wide and 48 feet long, being 12 feet from center to center, with coaming about 8 inches high. The distance between two hatches with chains on was 2 feet. Each hatch cover was composed of 10 telescoping plates, 5 on each side, worked by machinery from the center toward the ends of the hatch. When the hatch was entirely open, a passageway of about 3 feet was left between the cover plates and the side of the ship. But 28 of the Hanna's hatches could be loaded without removing the boat from the slip and ending her about. Accordingly hatches 1 to 28, both inclusive (counting from the bow), were entirely open for the purpose of loading. Hatch No. 29 was open at the center for some distance, the extent being in conflict. After loading had been in progress for a few minutes, the telescope being in No. 28 hatch, where the loading began, plaintiff in coming from the side of the boat opposite the dock back to the machine, for the purpose of resuming his station upon the platform, fell through the opening in the cover of hatch 29. There was trial by jury, and verdict and judgment for plaintiff. The errors assigned relate to the questions of (1) plaintiff's right to be upon the vessel at the time of the accident; (2) defendant's alleged negligence; and (3) plaintiff's alleged contributory negligence.

1. Plaintiff's right to be upon the deck.

The petition alleges that during the work of loading it became necessary and proper for plaintiff to go aboard the boat (a) 'in pursuance of the request and invitation of' the captain of the boat; (b) 'in pursuance of (plaintiff's) duties in safely carrying on said work of coal loading'; and (c) 'in order that the work of loading said boat could be properly, safely and expeditiously carried on to the benefit of both the Pittsburgh Coal Company and said defendant.'

There was testimony tending to show that it was the duty of the trim operator, as the loading of the vessel was about to begin (or perhaps just after it started), and after the telescope had been inserted in the hatch, while the boat was still high out of the water, to descend to the deck, oil the sheaves and look after the cables and trimming machinery and see that they are in good condition; that this is practically the only time the trim operator has to perform this duty; that it was the general custom at the Pittsburgh Coal Company's dock for the trim operator to take this course; that plaintiff always did so, and that he had in that capacity trimmed the Hanna at least four times at the dock in question during the then present season and once during the previous season. The greater part of this testimony was received without objection. Plaintiff also testified that just before the loading began the master of the boat, on leaving, asked plaintiff to 'keep an eye' on the mate, and that if anything should go wrong or it should be necessary to 'wind' the boat around, he call the master by telephone.

Plaintiff further testified that immediately after the work of loading was begun the conditions proved such as to make it necessary for him to go to the deck and examine his cables; that he did so; that he found the water was being pumped too rapidly out of the boat, causing her to get 'real high,' and he accordingly walked over to the further side of the boat to ask the mate 'to stop pumping the water, as if she got up too high we could only get a couple of cars at a time in without shifting,' that the mate sent orders to the engineer accordingly; that plaintiff started back to look at the cable on the other side of the machine and to go aboard the 'rigging,' in doing which he walked across hatch 29 and into the opening. No motion for directed verdict was made at the close of the testimony. Defendant requested no instruction touching plaintiff's right to be upon the deck at the time of the accident.

The jury were instructed that:

'If the plaintiff had any duty which from time to time called him to the deck, whether that duty related to the care of the machine which he was operating or a conference with any of the officers of the boat, or if, in the customary way of operating the trim machine, it was the habit of the trim operator to pass from time to time upon the boat, and the defendant knew that that was the habit of the trim operator, then the duty rested upon the defendant to use ordinary care for the safety of any such person, who thus had the right, or was known to the defendant to be in the habit of passing upon the deck of the vessel'--

(the instruction regarding the custom of going aboard the boat being later in the charge limited to 'a custom of going aboard to perform some work related to the matter of loading the boat or related to the matter of the loading machine,' with the express instruction that, in order that such custom be effective, it must be found that the defendant knew that plaintiff had such custom, 'or that the loader or the trimmer had the custom to go aboard the boat for the purpose of performing work in relation to the loading'; that the instruction was not 'intended to apply to a mere custom except that which has a foundation upon the performance of some work by the trim operator in connection with the loading of coal'; and that unless the plaintiff was 'rightfully' on the deck, 'either by reason of some work or some known custom which he (defendant) recognized and knew of,' the plaintiff could have no right to recover). The idea of a duty owing by defendant to plaintiff as a mere volunteer was thus excluded.

The only exceptions taken by defendant to the charge of the court on this branch of the case were, first, 'to the submission to the jury of the right of the plaintiff to be upon the vessel as established by custom, and as to whether the defendant knew of such a custom, there being no evidence that the defendant knew of any such custom'; and, second, to the part of the charge contained above in brackets, to which counsel announced 'the same exception, in that there is no evidence that the defendant had any knowledge.' The evidence above stated, in our opinion, tended to show defendant's knowledge of the alleged custom. Under these two exceptions defendant assigns error upon several extracts from the charge. It is perhaps enough to say that such assignments are not based upon proper exceptions. But assuming that they were, we think the criticisms presented are not well taken.

The only remaining assignments, so far as argued, relating to this branch of the case are directed to the admission of certain testimony as to the custom in question. As to one of these assignments (the fourth) it is enough to say that the ground of the objection on which the exceptions and assignments are based was not stated. This assignment can therefore not be considered. Burton v. Driggs, 20 Wall. 125, 133, 22 L.Ed. 299; Erie R.R. Co. v. Schomer, 171 F. 798, 805, 96 C.C.A. 458.

The objection on which the first assignment is based was that the defendant was not apprised of the custom. This objection was not good. The question of knowledge was for the jury.

The remaining assignment is based upon an objection of immateriality to a question as to the custom at the dock at the time of the accident and prior thereto, 'with reference to working on the 'D. R. Hanna' and other boats of that type, with reference to the trim operator, such as Jenkins was, going down on the deck of the boat to look after his machinery, and, if so, when did he do it? ' Defendant disclaimed exception to the form of the question. The answer was:

'It is a general custom and rule for the trimmer, and when he is starting a boat is practically the only time he gets to look after his machinery, on the boat, when the boat is high up out of the water, and he gets a very good chance to look at his sheaves and cables and at the machinery underneath which he cannot do at any other time. Q. How does he do that? A. He generally goes down on the deck of the boat. He takes advantage of that time, you see, because they roll from 10 to 12 cars in those large vessels before they shift when they start.'

This testimony is criticised as relating merely to an individual habit, and that its object was to 'create a right...