.' 'FEDERAL ,REPORTER·
Oolony, eu:., 10 Allen, 372; Walker v. Midland R. 00., Alb. Law J., January 8,1887. " , ' I think it was the duty of the boat, therefore, to keep the floor in a reasonably safe condition for such persons as might go there while it was ostensibly open to the passengers, and that the improper adjustment of the boards over the opening was negligence on the part of the boat. I cannot, however, regard the libelant as free from fault. His proper course to ascertain what provisions there were for berths was to inquire of the master, or some officer of the ship, instead of exploring the vessel on his own account. It is clear from the evidence that no preparation had been made for the use of the lower cabin by the club upon thib ,trip. Had inquiry been made of the officers, who were aware of the condition of the lower cabin, and of the uses then actually made of it, cautions would doubtless have been given before sending strangers into it. Moreover, I think, upon the evidence, that the room was not so dark, that the libelant, after being in it some little time, as he was, could not have seen the opening, had he acted with due caution. The noise and vibration caused by the revolving shaft were, at least, some notice that there was machinery near requiring care on his part. While this neglect on the libelant's part does not deprive him of all relief, under the decision in the case of The Max MCYT"I'iB, 24 Fed. Rep. 860, affirmed 28 Fed. Rep. 881, and cases there cited, I allow him, under the circumstances, the disbursements proved, including the wages of his substitute during his confinement, amounting in all to $206, with costs.
n,ot hooked wide 23 Fed. Rep. 103; The Gwi1lermo, 26 Fed. Rep. 921; Anderson v. Scully, p08t,161; Sweeny v. Old
THE TRURO. 1 FLAHERTY 'V. THE TRURO.
(Diatrict Oourt, E. D. New York.
June 8, 1887,)
BHIP·OWNER-LIABILITY FOR NEGLIGENOE-UNSAFE LADDER.
Libelant, a stevedore, in descending a ladder which led to the hold of the bark T.,clasped a batten which had been nailed across the ladder in place of a missing round. The nails at one end of the batten pulled out, and libelant fell to the bottom of the hold, injuries for, which this suit was brought. The ladder was furnished by the shIp-owner, who knew that it was to be used by the stevedores who were to load the vessel. Held that. in providing an unsafe ladder, the/ship-owner failed to discharge a duty he was under to the lil1elant, and was guilty of negligence.
SAME-CONTRIBUTORY NEGLIGENOE-FAILURE TO INSPEOT.
Libelant failed to scrutinize the batten before using the ladder. Bela. that he was as well able to judge of the security of the ladder as the shipowner, and was chargeable with knowledge of its insecurity equally with the latter; that his failure to so scrutinize the ladder was negligence.
lReported by EdwardG. Benedict, Esq., of the New York bar.
THE TRURO.
-So
S.um-D.UU.GB, APPoRTION:MBNT Oll'.
But held, that. as the contributory ne'gligence of libelant was not willful, gross, or inexcusable, he Was entitled to recover a portion of his damages, and was therefore allowed nothing for his pain 8lld suffering, but was alfor the accident; following The lowed the wages he would have earned »:eplorfll', 20 Fed. Rep. 185; Th6 Ma:o Morru, 24 Fed. Rep. 860, 28 Fed. Rep.
In Admiralty. Noah Tebbett8, for libelant. Goodrich, Deady &: Goodrich, for claimants.
BENEDICT, J. This is an action to recover damages for personal injury. The facts are not in dispute. The libelant was employed by one John Delaney, a boss stevedore, to work for him in stowing cargo in the hold of the bark Truro; the stowing of which cargo was to be' done by Delaney', under a contract between him and the ship's owner. The means of access to the hold from the ship's deck was by a moveable ladder, placed in the main hold, and reaching from the deck to the cargo in the hold. The foot of the ladder rested on the cargo as stowed, and, as the cargo raised in the hold, the ladder raised in the hatch. It was a poor ladder. Some of the rounds were gone; and about two and a half feet from its upper end, and as it stood in the hatch at the time of the accident, was a batten fastened at each end to the side piece of the ladder by nails. When the stowage of the cargo began, the batten was near the coaming of the hatch, and there the coaming, instead of· the batten, would be likely to be clasped by the hands of any·one going into the hold. On the morning of Monday this batten was some three feet above the coaming, and the libelant, in preparing to descend the ladder to go to work, took hold of the batten with his hands, when placing his feet on the rounds below. .The batten gave way, the nails on one end pulling out, and the nails on the other end breaking, and the libelant was precipitated into the hold, some 18 feet below, receiving serious injuries, for which this action is brought. During two days before the accident, the ladder had been used as the means of access to the hold by the various stevedores, including the libelant, and no accident occurred until tbe libelant fell. The libelimt says he knew the ladder was bad, and for that purpose he had used care when going up and down it. There is no evidence from which to conclude that any person had used the batten before the libelant did. Upon these facts, it must be held that negligeDce on the part of the ship's owner has been shown·. The ladder was furnished by the ship's owner, knowing that it was to be used by the stevedores who might load the cargo. It was an unsafe structure, calculated, as shown by this accident, to inflict great bodily harm. It was the duty of the ship's owner to provide the stevedores who were to load the cargo a safe means of access to the hold. This duty he undertook to perform by providing the ladder in question. When, therefore; instead of a proper ladder, he provided the unsafe ladder that caused the libelant's fall, he failed to discharge an obligation he was under to the libelant, and was guilty of
FEDDAL REPORTER.
negligence, which renders him responsible to the libelant COl res'ult .'.' . " The q-uestion raised· is whether the libelant waS alSo guilty of negligence in tt,ustipg the batten in the way he did. I illcline to the opinion that he was.. In this instance it was not the method of securing the ladder in its place that caused the injury; neither was it the general bad condition of the ladder. In general, the ladder had proved sufficient when used with care. The particular defect which caused the libelant's fall was the insecure condition of the fastening that attached the batten that gave way to the sides of the -ladder. If this batten had been properly secured, the ladder would have supported the libelant, and no accident would have occurred. The batten was, however,insufficient, either because the nails were insufficientin size, or because the nails had been improperly driven-in, or because the nails had become loose by use. As to the seeurity of the fastening of the batten at the -time the libelant used it,he was as well able to judge as the ship1s owner. Any defect in the;nailing that would have appeared to anyone would have been as apparent to:the libelant as to the ship's owner. If the ship's owner is chargeable ;with knowledge of the insecure condition oUhe batten, the libelant, who used the ladder, is chargeable with the same knowledge; No pei'Sonisjustified in trusting himself upon a ladder'without giving it that reasonable scrutiny which .any person of ordinary intelligence about to use IBuch a structurewotlld naturally giveiit. If the libelant had 6crutinizedthe batten to any considerable degree before trusting to it, he would have learned that it was insecure, and-would have put his hands on the sides of the ladder, instead of on the batten, andse> reached the ,hold! in safety. His failure so to scrutinize the batten. be, fore trusting td it. was negligence. The negligence on the part of the libelant in omitting all scrutiny of the batten,although eVident, as it seems to me, was neither willful, nor gross, nor He is therefore entitled to recover a part of his damages. By means of his injuries, he was rendered unable to do any work for five months, and he has never since the accident been able to do full work. His medical treatment was furnished by the hospital without charge. . Following the precedent of The &plO7'er, 20 Fed. Rep. 135, and The Max Morris, 24 Fed. Rep. 860, I allow him nothing for his pains and suffering, but allow him for loss of wages that he would have earned but for the accident. I think $500 will cover the loss. Let a decree be entered in his favor for that sum, with costs.
ANDEBSOli '0. SCULLY.
ANDERSON,
Adm'x, v.
SCULLY.
(District Oourt. S. D. Nriw York. May. 1887.)
NEGLIGENCE-WHARVES AND SLIPS-LICENSE TO
, Vessels necessarily mooring in the slips of this harbor. outside of other vessels next th,e wharf, have an implie(j UceJ;lse for their officers and men to cross the intervening boat for necessary purposes on shore; but such a license does not impose any duty upon the owner, as respects the licensee, to keep all possible modes of crossing safe,but, at most, only such passage-ways as are designed or known to be used as such. '
INTERVENING BOAT.
SAME-CASE STATED-QPEN-DECK BOAT-HATCH COVERS MISPLACED.
ascow lying outside of the
The canal-boat L. E. having properly moored within a slip, along-side of M., the libelant undertook to go across the scow to reach the Wharf. The scow was an open-deck boat. with a rOQf beginning two, and one-half feet above the deck, formed by numerous hatcl:!. covers. ' The libelant, instead of going around and passing along by the deck, clambered upon the roof of hatch COvers in order to go strl:light across. 'As he stepped upon the hatch covers beyond the peak, he fell through into the hold, through some insecurity of the covers, and soon after died. Held, that the SCOW was not answerable for damages, for the reason that crossing over- ' the hatch covers, though sometimes practiced, was not the mode of passage designed. ,nor a that owner was bound maintain as suc,h for the benefit of lIcensees, there bemg a safe passage by the deck; and that there was no invitation or inducement from the scow to the libelant to cross the hatches" nor anything in the nature of a trap or pitfall in the passage he would be naturally expect¢, to take.
Hyland for libelant. ' Edwd. D. Mc(Ja,rthy, for respondent.
BROWN, J. On the morning of June 8,1886, the canal-boat, LIzzie Eu.gene was brought froIn HOQoken to the pier at West Twepty-fourth street, North river, to take coal from the steamer Martello, which lay along-side the Wharf. Outside of the steamer lay Scow No.9, which was also engaged in the same workof discharging the Martello for the company. The canal-bollt had brought a large skid from Hoboken for the use of the scow, The captain of the on arrival, having moored along-l:!ide No.9, started to cross the latter boat to report to the stevedore in ret'erence to the skid: In crossing the scow, he fell down into the hold, and was so badly injured that he died within a few hours. This action is brought by the administratrix to recover for the negligence of the scow, under the law of the state, which gives an action for damages for death caused by negligence, not exceeding the sum of 85,000. The scow was what is known as an "open-deck boat," having a narrow deck passage-way along each side, and in front, and at the stern; while the center of the boat was divided into four compartments of hatches, which were supplied with large hatch covers, forming a roof with two sloping sides. The deceased, instead of going around by the deck passage to cross to the Martello, after reaching clambered about two and one-half feet upon the hatches, which were securely fastv.31F.no.3-1l