Reid v. E. S. S. Co.

• Decision Date: 18 May 1914
• Citation: 112 Me. 34,90 A. 609
• Parties: REID v. EASTERN S. S. CO.
• Court: Maine Supreme Court

90 A. 609

112 Me. 34

REID

v. EASTERN S. S. CO.

Supreme Judicial Court of Maine.

May 18, 1914.

[Copyrighted material omitted.]

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by William A. Reid against the Eastern Steamship Company. There was a verdict for plaintiff, and defendant moved for a new trial and brought exceptions. Motion and exceptions overruled.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HALEY, and PHILBROOK, JJ.

William Lyons, of Westbrook, and Benjamin Thompson, of Portland, for plaintiff. William H. Gulliver and Gerry L. Brooks, both of Portland, for defendant.

KING, J. This is an action to recover damages for injuries alleged to have been sustained by the plaintiff on the night of July 28, 1911, while in the defendant's employ as a fireman on its steamer Ransom B. Fuller, then on her regular trip from Portland, Me., to Boston. A verdict of $5,500 was returned for the plaintiff, and the case is before this court on the defendant's motion for a new trial and on exceptions.

The Motion.

Preliminary to a statement of the specific questions raised by the motion, it will be advantageous to point out briefly certain facts which are practically undisputed.

The Ransom B. Fuller is a side-wheel passenger and freight steamer of the burden of 2,329 gross tons. She is equipped with two boilers, located in the fireroom in the lower hold near the keelson, under each of which are two furnaces with the doors opening toward the after part of the ship. The fireroom proper, or floor space in front of the furnaces where the firemen work, is about 26 feet in length athwart the ship and 12 feet and 10 inches wide from the line of the furnaces back to a steel partition. The floor of the fireroom is constructed of large squares of iron, and it is 8 or 10 feet below the water line of the ship. On both the port and starboard sides of the fireroom are coal bunkers. The main engineroom is on the deck above. Two firemen are in each watch of four hours' duration, except the dogwatch, and each has charge of one of the boilers and the two furnaces under it, and, when the ship is under way, it is the duty of the fireman to so tend his fires that the required pressure of steam will be kept up. The ashes drop through the furnace grates into large ash pans, and these are drawn out onto the fireroom floor by the ash man, who throws the ashes back against the steel partition, from where they are thrown overboard by the use of an ash ejector, so called. This appliance consists of a cast-iron hopper or receptacle about 18 inches square at the top, tapering down to about 12 inches square at the bottom, and being about 18 inches deep, from the bottom of which an 8-inch cast-iron pipe extends across and out through the port side of the ship just under the guard and a little forward of the paddle wheel. The top of the hopper is about 3 feet above the fireroom floor and about 6 1/2 feet below the outboard end of the 8-inch pipe. When ashes are to be ejected, they are shoveled into the hopper, and from there they are carried outboard through the cast-iron pipe by a powerful stream of water forced into the pipe by the pumps. A cast-iron cover forms the top of the hopper, being hinged thereto on one side. The cover was designed and constructed to be held down, when necessary, by means of swinging bolts, called "holding-down bolts," attached to the hopper on three sides, and so arranged that they could be swung into "ears" or "slots" on the cover and screwed down, making a tight joint between the cover and the hopper, thereby preventing sea water coming into the fireroom through the hopper when heavy seas submerged the outer end of the 8-inch ejector pipe. It was conceded that the holding-down bolts were not in usable condition on the night in question; in fact they had completely rusted away some years before and had not been renewed, a condition of which the defendant had knowledge through its officers. The plaintiff shipped on the steamer in April, 1911, as a fireman, and continued in that capacity until a few days after the night of his alleged injuries. The regular sailing time of the Fuller from Portland was at 7 o'clock in the evening. On the night in question, owing to a heavy easterly sea, she did not sail until 10:36 p. m., and in about half an hour thereafter she was outside of Portland harbor. The plaintiff's watch began at 12 o'clock midnight, at which time he and another fireman went down into the fireroom and relieved the two firemen who had been on the previous watch. The steamer was then out on the high seas and was rolling so badly that each time she rolled the outboard end of the 8-inch ejector pipe was submerged, whereby large quantities of seawater came through the pipe and hopper into the fireroom, and at that time there was water in the fireroom that covered the floor to a depth on a level, as estimated by different witnesses, of from 2 or 3 to 6 or 8 inches, which washed back and forth in considerable Waves. The temperature of the room was from 115 to 140 degrees, and the plaintiff remained there tending his furnaces throughout his watch of four hours, during which time sea water continued to come in through the ash ejector as the ship rolled, and the conditions remained, as he claimed, substantially the same.

The plaintiff alleged, and introduced evidence tending to show, that in consequence of his standing and working during his watch of four hours in that sea water, with the rest of his body subjected to the high temperature of the room, he became sick and much disordered and contracted acute nephritis or Bright's disease and other ailments from which he has ever since sufered and still suffers, with little or no prospect of recovery.

The questions involved in the issue, whethed the defendant is liable to the plaintiff for his alleged injuries, may be thus briefly stated: (1) Was the ash ejector at the time of the plaintiff's alleged injuries defective and out of repair, on account of which an unnecessary and dangerous quantity of sea water came into the fireroom? (2) Was the defendant negligent in permitting the ash ejector to be thus defective and out of repair? (3) Did the plaintiff sustain personal injuries resulting in his damage in consequence of the sea water that was in the fireroom during his watch? (4) Was there any negligence on the part of the plaintiff that contributed to his injuries; or did he, by going into the fireroom and working there during his watch under the existing circumstances, assume the risk of the injuries that resulted to him in consequence of the sea water?

All these questions were properly submitted to the jury, and they decided them In the plaintiff's favor. Is their decision manifestly wrong? In other words, is it so unmistakably contrary to the plain import of the evidence that it should be held clearly erroneous? That is the precise question presented by the motion. The record is voluminous, consisting of about 800 printed pages. We have examined it in detail and with painstaking care, and we are not persuaded, from a consideration of all the evidence in the case, that the jury obviously erred in their decision as to the defendant's liability.

It would be practically impossible, within the reasonable limits of an opinion, to make a detailed analysis or extended summary of the evidence introduced in the case, and we shall here make only a brief general reference to some of the proof adduced in support of the issues involved.

1. It was not contended that there was any shuttle valve or other devise by which the outside end of the 8-inch ejector pipe could be closed, or any valve in the pipe to prevent sea water from flowing through it into the hopper; but the defendant claimed that the ejector was not in fact defective and out of repair, although there were no holding-down bolts, because a "prop," one end of which could be placed up against a beam in the deck above and the other end upon the cover, had been used and was a practical appliance to be used for the purpose of holding the cover in place when necessary in rough seas. Much testimony was introduced on the one side and the other as to the use of a "prop" as an appliance for holding down the hopper cover. It was claimed on the part of the plaintiff that a prop could not be kept in place owing to the springing of the ship as she rolled and pitched in heavy seas, and, on the other hand, the defendant claimed that, by properly wedging the prop, it would remain in place and was a fit means to keep the cover down. No particular "prop" had been provided for the purpose, but, when one was needed, the water tender or some one else would procure a piece of plank or joist and saw it off the right length and use it as such a prop. Mr. Frazier, an expert marine surveyor and engineer, called by the defendant, testified that when the ship rolled to starboard, assuming the ejector pipe to be full of water, there would be an upward pressure of 1,300 pounds on the hopper cover. He also testified that the steamer would roll the outer end of the ejector pipe under water three times a minute in the sea as it was described to be at the time in question, and that, with the cover of the hopper off, 210 gallons of water a minute would come into the fireroom through the hopper.

On the night in question a prop was used to some extent at least in an attempt to hold down the hopper cover, but the testimony was conflicting as to the length of time it was kept in place, and the fact was that, notwithstanding its attempted use large quantities of water came in through the hopper.

Eaton, a fireman on the preceding watch, testified that large quantities of water began to come in through the ash ejector in a few minutes after the steamer got outside of Portland Harbor, and that the water was 5 or 6 inches on a level over the floor, and, as the ship rolled, it would rise "nearly to your knees." Mattocks,...