It't'l'anged as to be' in contact, straight edge' to straight edge. 'Thfiidefeildant's' box, shown in Exhibit A., operates, and scems 'iIi that '*a.y, as' much asdidtheone·made by Nudevised ;geIit",'lttid,'before the court in the former Isuit. The projection does n()t sink down to the end of the slot, and there hook over the material in which' tl!te;, slot is cut, as in $0' nmny otherdevic'es,butengages with the edgeof:thesloHtself at se,veral points,' or continuously, as the pret!Sureupon the parts varies; , COl1lplaiionaIit may take a preliminary mjtinetion. '
,

:

.'

'"

',t

:.1

'1

.' j

I ;

THE, WILLIAM:

,WlLLiAM. ,BRANFOOl'.

(District , ,

Couri;r" D. .South , " " .

J

'

LSBJ1·pnhl..,.;,L:iAlIJU'l'YJ'OK ,PEBflON.l.L IN1URIIIls-,-DEFBCTITB APPLUNOB& , ; .A. in a ,ga,ng wbo ill injured, loadinit by the UUI'lXPecte,d llf Bstanchlon beoause Of defects Hl the fastel1rJiB'II6t observed and not apparent to the eye.' , " , " .' , 9. MEASURE OF DAMAGEB-PERSONAL INJURiES. .' . ' . , . '." , '" " "';',', By an accident on a vessel, for Which the ship was liable; a stevedore's laborer received a comminuted fraoture of the bones. ofllisleg, and had his leg amputated below the knee, being treated in a free hospital. He was between 80 and 35 years old, and earned $1.25 a day, 01'-$875 a year.-He/,d, that he would be allowed $500 for lIufferings and it would be assumed that his earning capacity was reduced twothirds, and that his life-interest in the ll&pitalized value of his income was worth one-b,alf the lWlount thereof, on wQich theor,y was to, ",cover $1,7861 or ; $21286 in:ilLA 1 :'./. ,:' _" . ·'S ,V,l ' :! " : " ',' " " , ,1: z :,; ,

In Admiralty. Libel by John Hamilton against the British steamship Williaml"BranfootfoTdarnages f6r'persolla.I' injurieS. Decree for libelant. . ·' Trenholm;c/c RMtt, for respondent. ' . :SIMo:NTdt:t,.J,;'r.rflislibei injuries,'receiVed,'on ship:, beIhnt 'was' gang empl?yed'ih discharging pyrites frOID' the British 'sfe/un-ship' William Branfooll; . While: he alid 'Others' were wonting iii' the' fu'werhold; an jron'starlchiorf suppottillg the necessary'. between-decks fell and broke his leg. The leg was cut off abont six inches helow the stanchion was main :fuiclwny.' n'W-aS 18 feet high, and weighed 660 pounds. .l,t rested. on an iron tank at ''tihe bottom :of thellold,ttri&:had two ,flanges at its lower'end, tbrough Ofiwhic,h ' iron ;bolt, Jrivefi'ng',it to thetRllk.' ' The top ofthl:l . ·ljt8.nchioilv W1\S riveted' 'to' the iron upon \'Vniolt'tbe 'between-decks 'resled; 'ThilHvss by 'aadrt of flap' pierced witbtwo'holes for rivets. 'After the stil.nchidn had :raUan; its upper erid was'examined. 'rhe con'currenceofftelltihionyis,that·o'ne of the rivets: oI'igitially iIi this part- Of

I..i

,;1';H]il .wILUAM BRANFOOT,.

915

the stanchion had broken off,. and disappeared., At all events, it was not in place at the time of tbe accident. Theothtlr was WOrll,-presented the appearance of an old break, which extended"some say one-h,alf, othersiWQ-thirds, through the rivet. There is of testimony as to the bolts at the base of the stanchion; Libelant's witnesses say that they exhibited old breaks. Those for claimant say that one exhibited a fresh break throughout. The other may have been broken in part. The stanchion feU without warning" unexpectedly. The discharge Of cargo was by means of a patented automatic. A rope \!as passed over a crane some, 50 ahove the vessel, to the end of whiQh was attached, by hooks, an iron bucket, weighing about 400 pounds. The bucktlt was let down into the hold; was disengaged from the hook by one man, who had no other duty but to disengage the buckets as they came down"anu to put on the hoooks when they w:ere loaded; was rolled on its wheels to the cargo; was loaded by the othel'ihands, rolled back under tha hlitch, and attached td the hooks. Loaded, it weighed 2,700 pounds. Upon signal the steam-hoisting apparatus was set in motion. The tub moved up slowly at first, then very rapidly, traversing the distance up in 10 secOnds. The theory of the claimant is that the hooks had been attached to a full tub before it got under the hatchway, and that the hoisting apparatus was prenlaturely set in motion. The heavy tub, thus dragged along the bottom of the hold, was dashedll,gainst this stanchion, tearinltitJrom its l\11rl causing it to tall'.' For this negligence upOIi'thepnrt of the sllip is not liable; the stevedore having been selected and engaged by the charterer. There were several eye.. witnesses to the accident;,-the foreman of the stevedore, who personally man in the hold,wbose duty it was to unhook'8ndhook the buekets; the man on deck at the hatchway, whose duty itwas to give the signalt<> the engineer of the steam hoist; and the men iIi the Kling in the hold. All of these that the tub did not strike the stanchion. On the other side there is but one person who was at the place of theacciclen:t when it occurred. Redid not see the tub, but just at the time he heard a noise which he concluded was caused by a blow: oithe tub on the stanchion. All the rest of the claimant's testimony on this point is theory. Tile positive evidence does not support it. The conclu'3ions of fllct are: The libelant, lawfully at work iUltha hold of vessel, was injured by the unexpected Iall of the stanchion; that it fell because ofdefective;fnstenings, cel'tuinly lit its upper end. probably'at its base, also; that these fastenings had become worn and broken' from· wear and tear,and were possibly originally These; detects were not visible except in one respcct,-the absence of ' one npJlerrivet. This Ilction is for absence of that care whiehitwas the duty of the respondent to use; It proceeds upon the idea existedari obligation upon the ;part of the respondent to libelant to use care,lrandof a brcatih of this obligation to the injury of the libelant. Such an obligation didexisttn this case. Cooley, Torts, p. 550; Gerrity v..TheKate (hnn t 2 Fed. Rep. 241. Libeh\nt has proved the fl!ll,.

FEDERAL REPORTER,

vol. 48.

ingof a stanchion of the vessel,. the cause of injury to him, the insecurity of-some of its fastenings, and' that this insecurity was not immediately perceptible. Does this require respondents to prove care on their part? i'When an unusual and unexpected accident happens, and the thing causing the accident is in one's exclusive management, possession, or control, the accident speaks for itself. is itself a witness. Res ipsa loquitur. And,in a suit by anyone having an action therefor. the fact of the accident puts on the defendant the duty of showing that it was oecasionedby negligence on his part. Kearney v. Railroad Co., L. R.5Q.B. 411; on appeal,L. R..6 Q. B. 759; approved in Gleeson v. Railroad Co., 140 U. 8.449, 11 Sup. Ct. RAp. 859. In ScoU v. Docks Co., 10 Jur. (N. S.) 1108, on appeal, 3 Hurl. & C. 596, the' court say: must be reasonable.evidence of negligence. But,when the thing is shown to be under the management of the defendant or his servants, and the accrdentis such asin the ordinary course of things does Dot nappen if those who have the management use proper care, it affotdsreasol1!lble e\Tidence, in the ,abseflcoof by the defendant, that the action from want of Clare," In' Ptansportation Co. v. Downer, 11 Wall. 134, this case is approved. In Mullen v. St. John, 57 N. Y.568: "When plaintiff' proved that the building fellinto the s,treet, and injured her,' she. had Il,lade . out a case, in the absence of ,any explanation., .on the part of the defendants,. as do not usually or nllcessarily fall; and that it is for tllejury under all the evidpnce, whether that explanation on the part of the defendanttl is reasonably made." .. . .
The rule is thus stated in 1 Add. Torts, § 33: "When the accident is' one which would not, iii all probability, happen. if the person causing it was using due care, arid tbeactual machine causing the accident is solely under the management of defendant; ... ... ... the mere occurrence of the accident is sufficient primafaoilJ proof of negligence to impose upou: the defet;ldant the onUS of rebutting it." In our case: the ,respondent rests on the theory that 'the blow of the bucket caused the fall of the stanchion. There is no evidence of any inspection of the stanchion at any time by anyone. The mate speaks of a cursory examination made by, him at some undefined time. This cannot be called an inspection.. It is very clear that neither the master nor the mate·had any suspicion that one of the rivets on the upper end of the stlmehionhad disappeared. There is no evidence whatever as to what care wasexeroised, if any care was exercised at all. The: witnesses, it is true; speOik of·a board lashed to this stanchion about midway in its height, and' to a stationary iron ladder leading into the QQld. If this was done because of some weakness discovered in the stanchion, the liability of tnEi!respondent would be fixed, both because this betrays knowledge of the defect and the very insufficient means taken to correctit. .' The shi proust tell pond in damages. The amount of damages is the next question. Libelant is an able-bodied man between 30 and 35 years of age. s. laborer, earning, when he has work, $1.,25 per day. He has been in a public hospital,-a free patient. That he suffered pain goes without say-

THE MASCOT.

917

ing. He had a cbmpoundcomminuted fracture of the lower bones of his leg. He must be compensated for his pain, and for his impaired capacity for labor. He is by no means helpless, or unable to make a living. Counsel for libelant press upon the consideration of the court tables, prepared by iniurance agents, showing the expectancy of life at various ages,35 years if libelant is 30, and 32 years if he is 35,-andask that he be allowed the sum of his daily wages for this period. This would be securing for libelant compensation for a certain period when we are dealing with the most uncertain thing in the world,-human life. I have no confidence in, and less respect for, these tables made up by insurance agents, in which, of course, large allowance must be made for heavy commissions, expenses, and profit. Nor can any safe guide be had from decided cases. Circumstances in each case sway the minds of judges, as well as jurors. We can compensate him for his pain. Following Mr. Justice BRADLEY in Miller v. The W. G. Hewes, 1 Wood's, 367, I allow him $500., His disability is for life, but for life only. Assuming-and it is beyond the mark-that he can get for every working day $1.25, his income would be $375 per annum. This would be the income at 7per <lent. on a capital of $5,357. But, as he would be entitled to such income only for his life, a decree giving him this sum in fee would clearly be improper. In South Carolina (Wright v. Jenning8, 1 Bailey, 277) the value of the life-estate as compared with the fee is as 1 to 2; that is, i. The one-half of $5,357 is $2,678. This would be the award were the libelant rendered absolutely helpless and incapable of work. But his capacity to labor is diminished, not destroyed. Assume that it is diminished two-thirds. Allot him two-thirds of.$2,678; that is, $1,786. Let a decree be entered for libelant in $2,286, and costs.

THE MASCOT.' ROSE

BRICK Co.

11. THE MASCOT.

{m8Prict Court, B. D. New YOrk. December 8O,1891.}
-ToWA()Il-OBSnucTloN-GENERAL COURSE. KNOWLED()E OF-DEPARTURE FROM: CUSTOM:ARY

A tug, (In taking a tow up a canal, ran the tow upon a rock which the tng claimed wa!i an unknown obstruction, !;Jut it, was !!hown that there,w,,!! general kI\owledge of' s()me' obstructions there, and a customary and well-known course to go on oue side of the canal, which the tug on this occasion departed from without cause. Belli, that the tug was liable for the injury to the tow for departing from the CUlttomary' jJOure6.

In Admiralty. Suit to recover damages for negligent towage. .cree for libelant. Wilcoi, Ada1ll8 Green, for libelant. Carpenter & Mosher, forcIaimant.
by Edward G. Benedict, Esq., of the New York bar.

De-