Souden v. Fore River Shipbuilding Co.
| Decision Date | 06 April 1916 |
| Citation | 112 N.E. 82,223 Mass. 509 |
| Parties | SOUDEN v. FORE RIVER SHIPBUILDING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Norfolk County; John F. Brown, Judge.
Action of tort by Jane Souden, as administratrix, against the Fore River Shipbuilding Company. On report of the presiding judge of the superior court after directed verdict for defendant. Judgment entered for plaintiff.
Romney Spring, Paul R. Blackmur, and Wm. G. Thompson, all of Boston, for plaintiff.
John Lowell, James A. Lowell, and W. D. Sohier, Jr., all of Boston, for defendant.
This is an action of tort, brought to recover for the conscious suffering and death of the plaintiff's intestate, who, while in the defendant's employ on November 5, 1909, received an injury which resulted in his death on the following day.
The declaration contains seven counts. The first, fifth and sixth are based upon the common law, and the second, third, fourth and seventh are under the Employers' Liability Act (Rev. Laws, c. 106, § 71). The third count is to recover for the death of the plaintiff's intestate, and alleges a defect in the condition of the ways, works, and machinery of the defendant, in conformity with the Employers' Liability Act. It is agreed that a sufficient notice under the act was served by the plaintiff upon the defendant. The presiding judge of the superior court ruled that the plaintiff could not recover and directed the jury to return a verdict for the defendant and reported the case to this court, the parties stipulating that:
The accident which resulted in the death of the intestate, occurred on board the battleship North Dakota on her trial trip, while she was engaged in a speed test from Rockland, Me., in the direction of Provincetown, upon the high seas after she had reached the waters of Massachusetts Bay. The defendant is a Massachusetts corporation, and at the time of the accident the battleship was in its charge and control. The plaintiff's intestate was employed as a coal passer on the ship, and was working in that capacity at the time of the accident.
[1] 1. It is settled that in case of a death occurring upon the high seas, an action may be maintained to enforce a remedy given by the state where the vessel is owned, and as the intestate was killed while on the high seas in a vessel belonging to a Massachusetts corporation, it was within the territorial jurisdiction of Massachusetts, and the rights of the parties are to be determined by the common law and the statutes of this commonwealth. The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264;La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973.
2. Upon the evidence the jury would have been warranted in finding that the plaintiff's intestate was in the exercise of due care. He was 17 years of age and apparently his only work consistedin carrying and shoveling coal. We do not understand that the defendant contends that he was lacking in due care.
3. The accident was due to an explosion of a tube or tubes in one of the boilers of the ship in the fire room where the intestate was working, by reason of which he was burned and scalded and died from his injuries the following day. There is no evidence to show that he knew or could have known of the condition of the tubes or appreciated the risk of an explosion, and therefore, it could not have been ruled that he assumed the risk. Fitzgerald v. Conn. River Paper Co., 155 Mass. 155, 29 N. E. 464,31 Am. St. Rep. 537;Ruddy v. Geo. F. Blake Mfg. Co., 205 Mass. 172, 91 N. E. 310. There was no evidence to show that the defective conditions existed before he entered upon his employment, and so there was not a contractual assumption of the risk; and as to defects which arose afterwards, it could not have been ruled that he assumed them; besides it is to be noted, that the defense that the intestate assumed the risk, has not been pleaded. Leary v. Wm. G. Webber Co., 210 Mass. 68, 96 N. E. 136.
[5] 4. The question left for determination is whether there was any evidence from which it could have been found that the defendant was negligent. The battleship North Dakota had been constructed by the defendant for the government of the United States, and was engaged in a trial trip at the time of the explosion. There was evidence that the ship had been in or near Rockland Harbor for several days before the accident, and that morning had made some runs before her speed test trip began. She was provided with four main feed pumps and four auxiliary feed pumps for supplying water to the boilers. There was evidence to show that some of the main feed pumps were in a defective condition on the day of the accident and also on the day before it occurred, and that they did not furnish sufficient water for the boilers; that one or two of them broke down before the trial trip began; ‘that...
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