San Francisco & P.S.S. Co. v. Carlson

• Decision Date: 18 May 1908
• Docket Number: 1,542.
• Citation: 161 F. 851
• Parties: SAN FRANCISCO & P.S.S. CO. v. CARLSON.
• Court: U.S. Court of Appeals — Ninth Circuit

161 F. 851

SAN FRANCISCO & P.S.S. CO. v. CARLSON.

No. 1,542.

United States Court of Appeals, Ninth Circuit.

May 18, 1908

William D. Fenton and Ben C. Dey, for plaintiff in error.

Henry E. McGinn, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The defendant in error brought this action to recover damages for injuries sustained by him by reason of the alleged negligence of the plaintiff in error, defendant below and owner and operator of the steamship St. Paul. The case shows that the plaintiff in the action was regularly employed by the steamship company as a longshoreman, but on the day of his injury was serving as winchman, in the absence of the regular winchman. The winch was used to work a lever by means of which the two elevators of the ship, called, respectively the 'port elevator' and the 'starboard elevator,' were lifted and lowered in the process of loading and unloading freight. The elevators were moved up and down by means of wire cables, which cables were attached to a beam, and which beam was about 8 feet above the deck of the ship and about 20 feet above the bottom of its hold. The cables so attached passed down on either side of the elevators to the bottom thereof, then immediately under them then up on the other side of the elevator, and then over a pulley to a drum, where it was wound up by force of a steam engine so operating the contrivance that, as the cable of one elevator was wound around the drum and that elevator raised the other cable would unwind and lower the opposite elevator.

The beam to which the cables were attached had a flange by which the elevators were liable to be caught, and which it seems did in fact catch the starboard elevator on the occasion in question, resulting in the plaintiff's injury. To prevent the elevators from reaching the flange, the defendant company attached to the beam what the plaintiff in error calls 'bumpers' and what the defendant in error denominates 'safety blocks,' which bumpers or safety blocks had rubber on their underside and extended about 8 inches below the beam, thus preventing, when in place, the elevators from becoming jammed and caught in the flange. There was evidence tending to show that the bumper or safety block of the starboard elevator shaft had in some way become detached, resulting in the catching of that elevator in the flange of the beam and its subsequent dropping with the plaintiff, and it is the alleged negligence of the defendant in failing to keep the bumper or safety block in place that is the ground of the plaintiff's action. The answer of the defendant company put in issue its alleged negligence, and also set up in defense that the plaintiff was himself negligent in the operation of the elevator, that his injury was caused by reason of some fellow servant raising the port elevator while the starboard elevator was caught, thus allowing the latter to fall, and also that the plaintiff assumed the risk of danger incident to the operation of the elevators, all of which affirmative defenses were put in issue by the plaintiff.

The first point made and insisted upon by the plaintiff in error is that the court below erred in refusing to instruct the jury to return a verdict for the defendant, in support of which it is contended, first, that the absence of the bumper or safety block was not the proximate cause of the plaintiff's injury. In submitting the case to the jury, the court below instructed them upon that point as follows:

'It is and was the duty of the defendant company to furnish the plaintiff a safe place in which to work, and reasonably safe appliances and safe machinery with which to do his work; but I instruct you that the duty of the master in this regard is fully performed when he uses due care and precaution in providing such safe place and machinery, and if, after having observed such care and precaution, the machinery becomes at fault or defective in some way without his knowledge, then he would not be liable. But if he knew, or ought to have known by the observation of reasonable care and foresight, that the defect existed, then he would be accountable for any damages ensuing by reason of such defect. It is also the duty of the defendant to keep the machinery in safe and suitable repair; that is, he must use ordinary diligence and care to see that it is so kept in repair. Negligence may be defined in a general way as the doing of a thing which the dictates of common prudence or foresight would indicate ought not to be done, or which a reasonably careful and prudent man would not have done, having in mind the attending conditions and circumstances of the occasion, or the omission to do a thing which the same prudence and foresight would say ought to be done, considering again the attending conditions and circumstances. And now, keeping in mind the duties imposed upon the employer-- that is, the defendant-- and the elements that go to make up negligence, it is for you to determine from all the evidence adduced in your hearing upon the subject, and applying your own common knowledge and experience, whether or not the defendant was chargeable with negligence in connection with the absence of the safety or bumper blocks in the starboard elevator, and for the alleged irregularity in the movement of the port elevator while the starboard elevator remained fast by reason of being jammed against the beam above.

These things you are to consider: The absence of the blocks; the manner in which the elevator became fast; the irregularity of the movement of the port elevator, if you find that the movement of such elevator was irregular, while the other was jammed...