Sunney v. Holt

• Decision Date: 01 January 1883
• Parties: SUNNEY v. HOLT, Ex'r, etc.
• Court: U.S. District Court — Northern District of Ohio

15 F. 880

SUNNEY v. HOLT, Ex'r, etc.

United States Circuit Court, N.D. Ohio, Eastern Division.

February Term, 1883

WELKER J., (charging jury.)

The plaintiff in this case was employed by the intestate upon the steam-barge Nebraska as a deck hand on some day in the month of November, 1877, and on the same evening, about 8 o'clock, while executing an order given by the captain in control of the vessel, owned in part by the intestate, fell into the open hatchway and was seriously injured, and for which he seeks to recover damages in this action. The plaintiff alleges that the intestate defendant, by his officers, was guilty of carelessness and negligence in allowing, after night, a hatchway on the vessel to be left open and without suitable and proper lights to guard against danger from it to those employed on the vessel, and particularly to the plaintiff. That the plaintiff was without fault and not guilty of any carelessness that contributed to the injury complained of. This negligence of the intestate and due care of the plaintiff are denied by the defendant. This allegation in the petition, and the denial by the defendant, form the issue that you are to decide and determine from the evidence you have heard on the trial.

To entitle the plaintiff to recover it must be shown to you that the injury complained of was occasioned entirely by the carelessness and negligence or improper conduct of the intestate defendant, through his agents having control of the vessel at the time. Negligence is the failure to do what a reasonably-prudent person would ordinarily have done under the circumstances of the situation, or doing what a person under the existing circumstances would not have done. If the plaintiff so far contributed to the injury complained of by his own negligence or want or ordinary care and caution as that, but for that negligence or want of care and caution on his part, the injury would not have happened, then he is not entitled to recover. One who, by his own negligence, has brought injury upon himself, cannot recover damages for it.

In settling the fact of carelessness and negligence on the part of the intestate, as well as that of the plaintiff, it is important to settle the relative duties of each. The intestate was required to use ordinary care in regard to the hatchway on the vessel in the night-time, and such as would reasonably guard and secure the safety of his employes on the vessel, and to guard against danger and injury to them in the performance of their work. In doing so it was his duty to exercise and employ the usual and customary mode and care adopted by reasonably-prudent persons in control of a vessel of like character, for safety from the hatchways, usually adopted and used on board of vessels of the character of the Nebraska, and under like circumstances. If such usual care was employed, then the intestate performed his duty towards the plaintiff. But if that was not done by the intestate and his agents, then such failure would be negligence; and if thereby the plaintiff was injured, without his own carelessness contributing thereto, the intestate would be liable to damages therefor.

The intestate defendant cannot relieve himself of this responsibility by showing that it was the duty of the porter employed on the vessel by the intestate to place lights upon the vessel and about the hatchways, if left open, and that if none were so placed by the porter it was the negligence of the porter although the porter may have been a co-laborer with the plaintiff upon the vessel. In performing his duty in regard to such lighting of the vessel, he was the agent of the intestate for that...