Tavares v. Dewing

• Decision Date: 16 February 1912
• Citation: 33 R.I. 424,82 A. 133
• Parties: TAVARES v. DEWING.
• Court: Rhode Island Supreme Court

82 A. 133

33 R.I. 424

TAVARES

v. DEWING.

Supreme Court of Rhode Island.

Feb. 16, 1912.

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.

Action by Bernardo Tavares against Ardelia C. Dewing. Plaintiff was nonsuited, and brings exceptions. Sustained, and case remitted for new trial.

A. B. Crafts, for plaintiff.

Littlefield & Barrows, for defendant.

PARKHURST, J. This is an action of trespass on the case for negligence, brought by the plaintiff against the defendant, by declaration alleging, in substance, that the defendant on and prior to the 28th day of December, 1909, was engaged in the oyster business, and owned and used for the purposes of said business a certain gasoline motor boat; that on said day said boat was in use in said business in Narragansett Bay, and that the plaintiff, an uneducated and simple-minded foreigner, wholly unacquainted with the simplest kind of machinery or mechanism, was employed on said boat as a common laborer as a servant of the defendant; that it was the duty of the defendant to provide the plaintiff with a reasonably safe place in which, and reasonably safe appliances with which, to work, and by the captain to warn the plaintiff of dangers not obvious to him, and that the captain of the boat, being, as the representative of the defendant, in absolute and supreme charge and control of said boat, commanded the plaintiff to bail out from the bottom of said boat water which was leaking into said boat adjoining a rapidly revolving shaft, part of the propelling machinery of the boat; that the flooring over said revolving shaft was removed, and the plaintiff was commanded to stand upon the flooring removed to bail out the said water; that the flooring was slippery, and that the plaintiff in obeying said command, and in the exercise of all reasonable care and caution, and wholly unacquainted with the fact that he was in any danger, or that the shaft was dangerous in any degree to him, slipped from the flooring against and upon said revolving shaft, and his right leg was caught by said revolving shaft, badly bruised, and the bones broken. The declaration further alleges, at much length, the ignorance of the plaintiff, and particularly his entire want of knowledge of machinery in general, and his entire lack of appreciation of any danger to himself in doing the bailing commanded by the captain, and that the captain wholly neglected to warn him of danger, and that the danger was not obvious to the plaintiff. The plaintiff also flies a second count, in which, in addition to allegations substantially similar to those above set forth, he also alleges that he was wholly unacquainted with the English language, as the captain well knew, and that the said revolving shaft was uncovered and unprotected. The declaration also alleges in both counts in substance that the captain, before the command was given, knew, or but for want of reasonable care and caution would have known, of the danger, and of the ignorance of the plaintiff, and of his entire lack of appreciation of such danger, the duty to warn him of the danger, the failure to give such warning, and that the risk was not obvious to the plaintiff.

To this declaration the defendant pleaded the general issue, and thereupon the case went to trial before a jury in the superior court, wherein, after the close of the testimony introduced on behalf of the plaintiff, the judge granted a motion for a nonsuit, upon exception to which, as well as upon other exceptions taken during the progress of the trial, the case is now before this court.

It appears from the evidence that the boat in question was owned by the defendant and was called the Mary Lou; that she was a vessel duly licensed under the laws of the United States, and under command of Win-field L. Sulis, as master, and was a gasoline motor boat, nearly 39 feet long and 14 feet wide, wherein the motive power was generated by a gasoline engine and transmitted to a screw by means of a shaft. The boat had a forward deck, open for the handling of oysters raised from the beds by a dredge, and aft of this deck was a small cabin, entrance to which was had from the forward deck by means of a door and steps located at the port side of the forward bulkhead of the cabin house and also by means of a door opening from a small after-deck located at the stern of the vessel. The cabin floor was somewhat lower than the level of the forward deck, and the cabin house extended some feet above said forward deck. In this cabin, in the forward part next to the cabin bulkhead, was located the gasoline engine, and from this a shaft extended aft, beneath the cabin floor and inclined downward at such an angle as to bring the after end of the shaft in proper position for the attachment of the screw propeller of the boat at a place in the water under the stern. A section of the cabin floor (called a "hatchway" in the testimony), beneath which the shaft ran, was so arranged that it could be lifted and laid to one side, so as to give access to the shaft and to the bilge or hollow space under the cabin floor. It appears that, at the forward part of the shaft, there was a "drum," so called, located "ahead of the hatchway * * * close to the engine," which "drum * * * incases the friction reversing gear" and is between 10 and 12 inches in diameter. It also appears clearly that there was on the shaft, at a position near the center of the opening formed by the lifting of the section of floor or "hatchway" above described, a "coupling" about 4 1/2 inches in diameter and about 10 inches in length, and that the shaft is in the center of that coupling (see Horton's testimony, Transcript, p. 80), and that that coupling has "holes bored through it, bored in to hold the bolt heads, and that makes it rough."

It further appears in evidence that the plaintiff was an ignorant Portuguese from the Cape de Verde Islands, who had only been in this country about two years, during which time he had been engaged in farm work; that he had had no experience of machinery, and had never before been on a boat, except a sailing vessel in which he came from the islands, and that he had no knowledge of the English language, having worked only with and for other men of his nationality; that he had worked on this boat only the one day previous to the day when he was injured, and then only on the deck, shoveling oysters, and that on that day he did not go into the cabin at all; that on the morning of December 28, 1909, he went aboard the boat, called the Mary Lou, about 7 o'clock, and the boat proceeded down the river; that near Field's Point the captain of the boat ordered him down into the cabin, and took up the section of the floor above referred to, laid it on the cabin floor to the left of the opening (as he faced forward), and commanded the plaintiff to bail out the water from the bilge under the cabin floor; that the water in the bilge was nearly up to the cabin floor and was above the level of the shaft, which was then revolving, the boat then being under way; that the water was foul and dirty and covered with oil; that the cabin was quite dark; that the cabin floor about the "hatchway" was wet and slippery; that the plaintiff, obeying the orders of the captain, which were communicated to him by signs, he not being able to understand the captain's language, took a large pail, and also a smaller pail with which to bail the water from the hole or bilge into the large pail, and knelt down on his left knee on the board, which had been taken up and placed to the left of the opening as he (the plaintiff) was facing forward, and that he then proceeded, while the captain looked on, to bail out the water with the smaller pail into the larger pail; that his right leg was drawn up behind him to steady him; that the captain watched him bail out one pail of water, and then turned away and went up into the pilot house; that almost immediately thereafter the plaintiff's right foot slipped from the board on which it was resting into the hole where the water was, his right leg was caught and drawn down by the revolving shaft into the narrow space below the cabin floor, and the bones of his leg were crushed and broken in such a way that, after a vain attempt had been made, at the hospital, to save the leg, it was found necessary to amputate it at the knee.

The plaintiff testified that he was unable to see the revolving shaft because of the water which covered it; that he did not know there was any such revolving shaft there; that he was not warned by the captain or any one else of any danger to himself in connection with the work he had been ordered to do. It also appears in evidence, from the captain's testimony, that the bilge pump with which, ordinarily, this water should have been pumped out, had been out of order "off and on" for two years previous to this time, during all of which time he had been captain of this vessel, and that it was out of order at this time, and had been so on the day previous, and that he never knew whether it would work or not until he tried it, and that it had been very frequently necessary to have the water bailed out of the bilge in the same way. It also appeared in evidence that Capt. Sulis filed with the collector of customs of the port of Providence a paper,'called a "wreck report," dated January 11, 1910, in which, after stating details of accident, appear question 28 and answer, as follows: "(28) State in detail measures taken to avoid casualty. A. Warning had been given to use great care in working around engine shaft while the boat was in motion, and particularly in taking out bilge water." It will be noted that while this statement on the part of the captain, taken in connection with his direct testimony that the bilge pump had been out of order "off and on" for a period of two years—i. e., for the whole time he had been in command— and that during that time it had been...