The Joseph B. Thomas

• Decision Date: 07 February 1898
• Docket Number: 385.
• Citation: 86 F. 658
• Parties: THE JOSEPH B. THOMAS. v. JENSEN. WATTS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

86 F. 658

THE JOSEPH B. THOMAS.

WATTS et al. v. JENSEN.

No. 385.

United States Court of Appeals, Ninth Circuit.

February 7, 1898

Andros & Frank, for appellants.

Frank P. Prichard, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is a libel in rem against the ship Joseph B. Thomas to recover the sum of $10,000, as damages for personal injuries alleged to have been sustained in consequence of the negligence of the master of the vessel, and of those intrusted by the owners of said vessel with its care and management. The undisputed facts are that the libelant was one of a gang of stevedores engaged in loading the ship at the port of Philadelphia, and was injured while at work in the lower hold of the vessel, under the forward hatch; that at the time of the accident most of the men, including the libelant, were at work in the lower hold, under or near the forward hatch engaged for the most part in tearing up a stage which had been put up in the hold in order to render the work of loading more easy; that the hatch covers, consisting of three pieces, had been taken off that morning, and were piled one on top of the other, forward of the forward hatch on the main deck; that these hatch covers were somewhat curved; that the hatch coamings were about 9 or 10 inches high, and the covers, piled one on top of the other, were nearly flush with the hatch coamings; that a keg belonging to the ship, which had been freshly painted, was placed by some one on these hatch covers to dry; that this keg was knocked over into the hatchway, and, in its fall, struck the libelant on the head inflicting severe injuries; or, in other words, to quote the language of one of the witnesses:

'There was a little keg standing on one corner of the hatch cover,-- on the port corner of the hatch cover; and one of the men happened to touch the top hatch cover on the starboard side and through that it started the keg off the hatch cover, and the keg went down through the hatch, and struck the man.'

The disputed facts are substantially confined to two questions viz.: (1) Was it a stevedore or a sailor who trod upon the hatch covers? (2) Were the hatch covers improperly piled? The court below, after an extended review of the testimony, came to the conclusion that it was one of the young men belonging to the ship, and not one of the stevedores, who stepped on the hatch covers, upsetting the keg; that, so far as the evidence discloses, the hatch covers were piled in the usual and proper manner. The conclusions of the trial court upon disputed questions of fact, where the witnesses were present at the trial, are, as a general rule, accepted by the appellate court. The Albany, 48 F. 565; The Alijandro, 6 C.C.A. 54, 56 F. 624; The Lucy, 20 C.C.A. 660, 74 F. 572; The Glendale, 26 C.C.A. 500, 81 F. 635. But the reason in favor of that rule does not exist, and cannot be applied (at least, not to the same extent), in a case like the present, where all of the testimony was taken before an examiner. The Glendale, supra. The object of arriving at a correct conclusion as to the disputed facts in this case is only material in so far as the result reached thereon might bear upon the legal questions to be considered,-- as to whether the injury which appellee received was occasioned in whole or in part by the negligence of one or more of his fellow servants, or was occasioned in whole or in part by the negligence of the agents and servants of the appellants. There is no question raised as to any contributory negligence of the appellee. He is clearly shown to be entirely free from any fault or negligence in the premises. The legal contention of the appellants is that upon the facts, as found by the district court, the judgment should have been in their favor. Their argument is that the injury to appellee occurred from the immediate act of the person who trod upon the covers; that such person was a fellow servant of the appellee, one of the employes of the stevedore who was loading the vessel, under a contract with the owners thereof, and over whom appellants had no control; that the proximate cause of the injury to appellee was the fact that the hatch covers were piled one upon another, in such a manner that when the employe trod upon them the covers tilted and overturned the keg, and it fell through the hatchway into the hold. The legal contention of appellee is that, if the facts should be found by this court as claimed by the appellants, the judgment of the court would nevertheless be correct. In other words, his argument is that it was negligence on the part of the officers and employes of the ship to place an empty keg upon a pile of covers, the top of which was flush with, and adjacent to, an open hatchway, and to allow the keg to remain in that position, where any jar or movement of the covers would have the effect of precipitating it into the hold below, and that this negligence was the proximate cause of the injury. What are the principles of law applicable to this case?

1. What duty did appellants owe to appellee? Their duty was to provide him a safe place in which to work, and to exercise ordinary and due diligence and care in keeping the premises reasonably secure against injury or danger. This is the pith and substance of all the decisions upon this subject, as expressed in a great variety of cases, each having reference to the special facts and surroundings of the evidence relating thereto. In Gerrity v. The Kate Cann, 2 Fed. 241, 246, where a stevedore was injured by the fall of dunnage and plank upon him, the court said:

'There was a relation between the shipowner and the libelant, arising, not out of the mere presence of the libelant on board the ship, but out of the service he was then engaged in performing, the necessity of that service to the shipowner, and the circumstances of the libelant's employment to perform that service. The libelant had therefore a right to be where he was, and it follows that there was a duty on the part of the owner to see to it that the dunnage and plank stowed above him were so secured as to prevent its falling upon him of its own weight.'

This case was affirmed upon appeal in 8 F. 719.

In The Frank and Willie, 45 F. 494, 496, where a seaman was engaged unloading cargo from the hold of the vessel, and had his leg broken by the fall of lumber against him, the court said:

'The duty to provide reasonable security against danger to life and limb, by at least the usual methods, when these dangers are brought home to the knowledge of the proper officers, is manifestly a general one. It attends the seaman wherever he is required to go on shipboard in the performance of his duties, and applies as much to a dangerous condition of the cargo as to defective rigging or a rotten spar.'

In Leathers v. Blessing, 105 U.S. 626, 629, where the libelant went upon board a steamboat, expecting a consignment of cotton seed, to ascertain whether it had arrived, and was injured by the fall of a cotton bale, the court, after stating the facts, said:

'This makes the case one of invitation to the libelant to go on board in the transaction of business with the master and officers of the vessel, recognized by them as proper business to be transacted by him with them on board of the vessel at the time and place in question. Under such circumstances, the relation of the master and of his co-owner, through him, to the libelant, was such as to create a duty on them to see that the libelant was not injured by the negligence of the master.'

See, also, White v. France, 2 C.P.Div. 308; The Max Morris, 24 F. 860; The Carolina, 30 F. 199; The Phoenix, 34 F. 760; Johnson v. Bank, 79 Wis. 414, 421, 48 N.W. 712.

2. Was it negligence on the part of appellants in placing, or allowing its servants to place, an empty keg on the hatch covers, in such a position that an accidental jar or disturbance would naturally cause it to fall in the hatchway and thereby endanger the life and limbs of the stevedores at work in the lower hold of the vessel? Was it such negligence on the part of appellants as will justify the court in holding them liable in damages for the injury received by appellee? Was it the proximate or efficient cause of the injury? We do not understand appellants to deny that the keg was placed on the covers by one of their servants connected with the vessel. It belonged to the ship, and was used as a receptacle for drinking water. It had been freshly painted, and was placed upon the covers to dry. There is no evidence tending in the slightest degree to show that it was placed there by any person other than an employe of the appellants. The argument of appellants is to the effect that the keg was not placed in such close proximity to the hatchway that, if accidentally jarred or moved, it was liable to roll or fall; that its position was not one of impending danger; that there was no probability of the injurious consequences attached to the placing of the keg on the covers; that its position was seen during the day by the stevedores and others, who never spoke of its being in a dangerous position; and that for these and other reasons it ought not to be held that appellants did not use reasonable care. Counsel do not, and, under the facts, could not, claim that there was not some possible danger. The result shows, beyond controversy, that the keg was placed in such a position that it was liable to roll over and fall, upon any disturbance, be it slight or great. It did fall when a person inadvertently or accidentally stepped upon the hatch covers. This, in the very nature of things, was liable to occur, and did occur. There is no need of indulging in conjectures or probabilities as...