Smith v. Lehigh Valley R. Co. of New Jersey
| Decision Date | 23 October 1905 |
| Citation | 141 F. 192 |
| Parties | SMITH v. LEHIGH VALLEY R. CO. OF NEW JERSEY. |
| Court | U.S. District Court — District of New Jersey |
Syllabus by the Court.
A mate and floatman belonging to the same crew, having the same employer, and being engaged in a common object, although of different rank, and working on different lines to accomplish the undertaking, are fellow servants, and the negligence of the mate, whereby the floatman was injured, is the negligence of his fellow servant; and neither the vessel nor its owner is chargeable with the consequences of such negligence, in the absence of evidence showing that the owner was negligent in the selection of such servant.
Herbert Clark Gilson and William C. Gebhardt, for libelant.
Collins & Corbin and George S. Hobart, for respondent.
The libel in this cause was filed for damages for personal injuries to the libelant, alleged to have been caused by the negligence of the respondent while he was in its employ as a floatman on the 2d day of April, 1904, at Communipaw, N.J. Float No 10, with 12 loaded freight cars thereon, was being propelled by the tug Catasaqua from pier 44, New York City, to certain bridges of the respondent, adjoining a long pier of the Central Railroad Company of New Jersey known as 'Pier 1,' or the 'Cement Dock.' The float had two tracks upon it, running longitudinally upon each of which tracks were six cars, and between the cars was a platform seven feet wide. The tug was attached to the float about midway on its right side. The accident happened at a little after 5 o'clock in the afternoon. The ebb tide was still running, but not strongly. It was high tide by the calendar that day at Governor's Island at 9:30 in the morning, and in the evening at 9:45. This made it low water by the calendar at about 3:30 o'clock in the afternoon, but the evidence shows that at the point in question the ebb tide continues to flow for some time after it is nominally low water by the calendar. The libelant had been in the employ of the respondent for six years, and for the last four and a half years as a floatman, and during his service in that capacity had made many trips with the tug in question, and with all kinds of floats, including floats like the one above mentioned. The accident was occasioned by the movement of the tug, probably forward, which caused the quick running of a line, one end of which was attached by an eye thrown over a cleat on pier 1, and the other end of which had been passed by the floatman once or twice around a bitt on the float. The line, not having been given sufficient turns around the bitt to make it fast, paid off freely, as has been stated, with the movement of the tug and float. The libelant's let was caught in a loop or kink of the surplus line, which had been coiled on the deck of the float, was drawn against the bitt and so severely injured that it had to be amputated just below the knee. The evidence shows that it was customary to enter the bridges, which were about 250 feet inside of the outer end of the pier, by approaching the pier at varying angles, depending somewhat upon the course of the tide; that, when the float came near enough to the pier for the purpose, a line was thrown over a cleat on the pier, the other end then made fast to a bitt on the float, when by action of the tug the float would be swung around toward and parallel with the pier, and thence carried forward to the bridge. There were upon the tug and float at the time of the accident the following employes of the respondent: A fireman, engineer, captain, mate, deckhand, and the libelant. The fireman and engineer were at their posts on the tug at the time, and knew comparatively little about how the accident happened. The captain was in the pilot house of the tug, steering, and signaling the engineer as to the movement of the tug and float, and float, and, as the pilot house was not sufficiently high for him to see over the cars on the float, the mate was stationed on top of the cars, directing the libelant, and also signaling with his hands or by his voice to the captain how the tug should be managed. The evidence shows that, just prior to the accident, the tug approached pier 1 slowly and well under control; that the mate directed the libelant to pass the end of the line to a brakeman who happened to be on the pier; that the line was not passed to him in time to place its eye over the first cleat, but it was placed by him over the second cleat, some 25 feet or more further from the end of the pier towards the floating bridge which it was intended to enter. The libelant claims that his injury happened because the mate directed him to make the line fast to the bitt, to do which it was necessary that the line should be passed around it four or five times, and then, directly after he had given such order, and before the libelant had passed the line more than once or twice around the bitt, and without waiting to see that his order was executed, the mate went across the top of the cars, and gave the signal to the captain to start the tug, which was done without notice, as was customary, having been given to the libelant that the tug was to be started. The line used on this occasion was a new one, and the testimony shows that such a line, especially when wet, was more apt to kink than an older one; but of this fact the libelant must have known, or should have known, because he admitted that he had used new lines before.
It may well be questioned from the libelant's own testimony, which is, however, contradictory on the point, whether the mate was negligent in the respect above mentioned, since he testifies three or four times that, as soon as the eye was placed over the cleat on the dock, the first order given by the mate to the captain was to start the tug, and again, that this order was given to the captain before he, the libelant, was ordered to make the line fast to the bitt on the float. If such were the fact (and he ought to know whether it is or not) he could not have been caught unawares, but, on the contrary, was put on his guard by proper notice, and knew just what would naturally follow under the circumstances.
The important question in the case, however, is whether the mate was or was not at the time of the accident a fellow servant of the libelant. I think he was, and that they were both in the employment of the same master, engaged in the same undertaking, and in the discharge of duties tending to its accomplishment. In 25 Am. & Eng.Enc.of Law (2d Ed.) pp. 132, 133, the rule of law applicable to this case is laid down as follows:
It is the duty of an owner to see that a ship is seaworthy properly manned with competent seamen and officers, and equipped with all appliances necessary for its use and the safety of the crew. * * * Where the owner has performed his duty in the respects above mentioned, neither he nor the vessel is liable for injuries to a seaman arising from the perils of navigation or...
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