The Wyneric

• Decision Date: 07 October 1907
• Docket Number: 4,878.
• Citation: 156 F. 276
• Parties: THE WYNERIC.
• Court: U.S. District Court — District of Oregon

156 F. 276

THE WYNERIC.

No. 4,878.

United States District Court, D. Oregon.

October 7, 1907

Giltner & Sewall, for libelant.

Williams Wood & Linthicum, for claimant.

WOLVERTON District Judge.

A libel to recover for personal injuries received by libelant while at work stowing lumber in a water ballast tank in the lower hold of the ship Wyneric. Libelant was in the employ of Brown & McCabe, stevedores, who were under contract with the Pacific Export Lumber Company, charterer of the ship, to load her. The charter party represents the ship as being 'ready, with clear holds, to receive cargo, and tight staunch, strong, and in every way fitted for the service having water ballast,' etc. On the day of the accident giving rise to the libel, namely, October 4, 1906, libelant had gone into the tank with Holm, another employe of Brown &amp McCabe, and the two together had stowed two slings of lumber, so called from the manner in which the lumber was lowered, and, while carrying a timber 3 by 12 inches and 20 feet in length, and placing it in stowage, two planks fell from above, and struck libelant upon the head, causing the injury of which he complains. The tank is described as being 41 feet in length, 18 feet in width at the forward end, and 10 at the other, and from 10 to 12 feet in depth. The hatchway, in dimensions five feet square, is in the corner of the tank. The libelant was carrying the end of the timber farthest from the hatchway, and had proceeded aft along the tank partition to the corner when he was hurt. He testified:

'I stooped myself down, and the plank was about a foot from the floor when I dropped it; and, as soon as I dropped the plank, two plank came down on me when I stooped over. The first one knocked an inch and a half hole on my head, and the second one came across my back.'

On cross-examination he says:

'Yes; I did put down a 3 by 12, just easing it down, when it came on top of me, those two planks. Q. And Holm was at the other end of that stick? A. Yes.'

Andrew Holm, the man who was assisting libelant, corroborates him in the main, but not in detail, being unable to see libelant plainly from where he was. He says that the fall of the planks knocked libelant senseless, but that he came to in about five minutes, and witness helped him out. The libelant states, however, that he ascended the ladders to the upper deck without assistance. The men, finding the light admitted through the hatches insufficient for doing their work conveniently, were furnished with two candles, which were being used at the time; but with these the tank was yet illy lighted.

The tank was provided with a wooden floor, and, from the testimony of the officers of the ship, it appears that two of the planks thereof had been missing for some time, and had not previously been located. In further detail, it appears that the tank contained stanchions running up and down the sides thereof, and iron beams across the top, leaving a space between the beams and the top. The boatswain, being examined as to the possibility of loose boards getting caught above these beams by floating in above them while the tank was full of water, testifies as follows:

'Q. Isn't there an angle bar running over the tank just below the top of the tank and the tank? An iron beam running there? A. Yes, sir; there is beams running right over the tanks. Q. And it is possible for loose boards to get caught up there, isn't it? A. Between them? Q. Between the beams and the top of the tank, isn't there room for them to get caught? A. Yes, sir; but they are made to fit. * * * Q. It is possible to put some planks between the beam that runs across the top of the tank and the tank, isn't it-- between the space where sticks could be put in? A. Yes, sir; if you would put them in. Q. And if they should be loose at the bottom they might fall in there and get caught? A. There is nothing to catch on. Q. There is a space, isn't there, between the top of the tank and the beams? A. Yes, sir. Q. Now, if they got caught in there? A. Yes, sir; they would come out the same way they come in. They wouldn't stick. Q. Isn't it possible they might stay there? A. It may be possible.'

The boatswain testifies, further, that on the forenoon preceding the accident he, with three men, went into the tank and cleaned it out; that it was necessary to sweep it down upon the sides and the top because of the slime and rust that would accumulate from the action of the water; that his men were at work in each tank perhaps half an hour; and that they discovered nothing of the plank in question while employed in cleaning out the tank.

As it respects the extent of the injury, libelant testifies that he went to his employer at once after he was hurt, and was sent to Dr. Wheeler, who sewed up and dressed the wound upon his head, but did not examine his back, although he informed the doctor that it was hurt also. This was on the 4th of October. On the 11th or 12th of the same month he went to Dr. Sewall, who, with the assistance of Dr. Tilzer, examined him for injury to the spine. These physicians found no evidence of pain from pressure upon the vertebrae, but a tenderness was discovered in the lumbar region, and, when required to stoop, it was ascertained that libelant favored his back, and hence it was concluded that he had sustained a sprain of the ligaments in the locality designated. It was thought the effect upon the nervous system would be very temporary. When asked whether he thought the injury was permanent, Dr. Sewall answered:

'I do not. Just as I told you in respect to a sprain, it isn't as good as it was before it was sprained. * * * I mean a ligament, after it has been stretched, is not as good as it

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