White v. John W. Cowper Co., Inc., 140.

Decision Date09 February 1921
Docket Number140.
Citation271 F. 423
PartiesWHITE v. JOHN W. COWPER CO., Inc.
CourtU.S. Court of Appeals — Second Circuit

Ulysses S. Thomas, of Buffalo, N.Y. (Ralph W. Dox, of Buffalo, N.Y of counsel), for appellant.

Lanza Bell & Montesano, of Buffalo, N.Y., for appellee.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

This is a suit to recover damages for the death of the administrator's intestate, Calogero Falzone, whose death it is alleged was due to the negligence of the respondent. Falzone was on May 24, 1916, and for some time prior thereto in the employment of the respondent as a laborer assisting in the construction of a building along the Erie Canal, in the city of Buffalo. While so engaged he was required to and did haul, by means of a wheelbarrow, sand or gravel from a scow on the canal to the building then under construction. The sand scow was heavily loaded, and was so low in the water that it was impossible to get it close to the shore. To remedy this situation another boat was anchored between the sand scow and the shore. There was a space of about 12 feet between the sand scow and the smaller inside boat and the shore. It does not appear what the exact distance was between the inside boat and the shore. The testimony was that the inside or construction boat was not right up against the dock on account of the mud and dirt. There appears to have been no sufficient wharf or dock over which the sand could be conveniently unloaded, and gangplanks were laid from the sand scow to the inside boat, and from the inside boat to the shore. On the morning of the accident, May 24, 1916, the two boats were about on a level.

The deceased was set to work with a gang of about 30 others rolling sand in wheelbarrows from the outside sand scow to the inside boat, and thence over other gang planks to the shore. By half past 1 in the afternoon, which was the time the accident happened, the sand scow was more than half unloaded. As the sand was unloaded, the outside boat rose out of the water. About noon heavy pile-driving machinery was loaded upon the inside boat, which caused it to settle in the water. This caused the gangplank, which ran from the inside boat to the outside boat, and which was level with the boats when the work began at 7 o'clock, to become quite uneven. There is disagreement in the testimony as to the extent of the gangplank's incline. The libelant's witnesses put it at between 6 and 7 feet, while the respondent's witnesses state the difference as about 2 1/2 feet. The District Judge thought it not unlikely that the difference was approximately 4 1/2 feet. The gangplank was about 16 feet long and 6 feet and 10 inches wide. It consisted of three planks put close together. They had a 2x6 cleat on the underside to hold them together. They were very springy, and given to an up and down motion when any of the men rolled their loads of sand over them. There were no guard rails, nor was there any stiffening of the gang plank by means of lengthwise timbers. It is agreed that it is not customary to have railings or guards along a gang plank over which merchandise is hauled, although such a custom does exist as respects gangways used for passengers. The deceased's work consisted in wheeling an iron wheelbarrow filled with sand down the gangplank. The following is an excerpt from the testimony of one of the men employed with the deceased upon this work:

'Q. What effect did the change in grade of the gangplank have upon you as you rolled your wheelbarrow of sand across it? A. The effect was that one side of the plank was higher and the other side low, and it ran faster. The wheelbarrow ran faster because it was deeper-- steeper. The wheelbarrow had the effect of pulling the person rolling it along.
'Q. And rolling the wheelbarrow over that plank-- Describe what the condition of the plank was, as to rigidity or elasticity. A. If you are strong enough to hold the wheelbarrow, it is all right; but if you are not strong enough, it would pull you along. That plank, as I rolled across it, was springing.'

The deceased was a young Italian laborer 25 years of age, rather short of stature and slim of body. He was described by one of his coworkers as 'very skinny, and much smaller than the others on the job. ' At the time of the accident he was engaged in rolling a wheelbarrow of sand down the steep incline of this springy gangplank, and he lost control of the wheelbarrow, and fell over into the water, and was drowned.

The respondent owned no boats. Its business was the construction of buildings. The work of unloading this boat was done under the supervision of a foreman, who was without experience in the unloading of boats. The unloading of the scow in this case was the one only job of the kind he had ever had.

The foregoing are the facts as they appear to us in the record. It remains to state the law applicable thereto. In cases of tort, the jurisdiction in admiralty depends entirely on locality, and it is now settled that the admiralty has jurisdiction of a suit to recover damages for a maritime tort that occurs on the high seas or public navigable water, whether it be a wrongful act or a wrongful omission. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 Sup.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.(N.S.) 1157; Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 Sup.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C, 451, Ann. Cas. 1917E, 900. In the first of the above cases it was held that the admiralty has jurisdiction of a suit in personam by an employee of a stevedore against the employer to recover for injuries sustained through the negligence of the latter while engaged in loading a vessel lying at the dock in navigable waters. In the present case the libel is filed to recover for the death of one who was at the time of his death engaged in unloading a boat under the control of the respondent while lying in the navigable waters of the Erie Canal. In The Robert W. Parsons, 191 U.S. 17, 24 Sup.Ct. 8, 48 L.Ed. 73, the court held that, although the Erie Canal is wholly within the state of New York, it connects navigable waters and is a highway of commerce between ports in different states and foreign countries, and is therefore a navigable water of the United States, within the admiralty jurisdiction of the courts of the United States.

In the absence of a federal or a state statute giving a right of action therefor, a suit in admiralty cannot be maintained to recover damages for death caused by wrongful act or negligence on the high seas or navigable waters. The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140, 30 L.Ed. 358; The Albert Dumois, 177 U.S. 240, 258, 259, 20 Sup.Ct. 595, 44 L.Ed. 751. But such a statute exists in the state of New York, and a right of action so given is enforceable in the admiralty courts of the United States, if the facts are such as would bring the case within the maritime jurisdiction if death had not resulted. See La Bourgogne, 210 U.S. 96, 28 Sup.Ct. 664, 52 L.Ed. 973; The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. 264; The City of Norwalk (D.C.) 55 F. 98.

The principal question which this suit presents is not, however whether in the unloading of the sand scow...

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