THE SEnAPIB.

393

City of Rome, in the court of common pleas of this city. In that action concurrent negligence of the plaintiff would be a, sufficient ground of dismissal; in admiralty, it is not. The Max Morris, 137 U. S. 1, 11 Sup. Ct. Rep. 29. To determine the sufficiency of the plea it is, therefore, necessary to know whether the former judgment of dismissal proceeded on the ground of the plaintiff's concurrent negligence, or solely upon the ground of failure of proof that the defendant was negligent. In the latter case, the former judgment, though in a common-law court, becomes a bar and estoppel here. Upon these exceptions no judgment cali be rendered now j inasmuch as the facts stated in the exceptions must be sustained by proof at the hearing. I have, nevertheless, examined the matt-er upon the request of the parties and for their convenience in l'eference to any future trial. Upon the evidence as to the grounds on which the dismissal was ordered by the presiding judge on the former trial, as shown by the stenographer's notes of thli.t trial submitted to rile, and upon the admitted facts as stated in the affidavit of counsel, and assuming also all behalf of the libelant that the evidence offered by him was ruled out, as he states it was, I am satisfied. that upon the hearing of this cause I should be obliged to hold that the former trial and judgment are a bar to the present action, inasmuch as the proofs submitted would be sufficient to show that the direction of a verdict by the judge was not based upon negligence of the plaintiff, but because the proofs before him did not amount to any negligence on the part of the defendant.

THE SERAPIB. SMITH

v.

THE SERAPIB.

(Dl8trict Oourt, D. Maryland.

December 4, 1891.)

1.

INJURY TO EMPLOYE-DANGEROUS APPLIANCES-CONTRIBUTORY NEGLIGBNCB,

Libelant, a stevedore, lost his right hand by its being caught between the cogs of a steam-winch, which the.court found to be dangerous and unsafe because of the nearness of the steam-valve to the cogs, and of the absence of casing over the cogs to prevent such accidents. Libelant knew the dangerous condition of t.he Winch, and spoke of it to the mate of the vessel, but continued during part of two days to work the winch, unloading cargo out of the steamer's hold. Held, that the f!Wt that libelant continued to work the winch with knowledge of the danger and risk did not of itself, as matter of law, bar his recovery in admiralty, but was evidence merely of contributory negligence on his part.

2. SAME-D.uL\GES-IN ADMIRA.LTY. . HeZd that, the libelant's contributory negligence being neither willful, gross, nor inexcnsable, and the facts presenting a strong case for his relief, he should be decreed one-half the sum as damages which he would have recovered if he had beell without faUlt. . .
(SyUabU$ by the

ooon.)

J. COOkman Boyd, for libelant.

In Admiralty.

Libel for personal injuries.

Convers k Kirlin andW. Benton 0riBp, for respondent, citedRobertson v. Oornelson, 34 Fed. Rep. 716; Stringham v. Hilton. 111 N. Y. 188, 1.8 N. E. Rep. 870; Rail1'oad Co. v. McIJade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044; Miles v. The Servia, 44 Fed, Rep. 943; The Maharajah. 40

394

FEDERAl<

vol. 49.

;Fed. ReJ;!. 784; Ooullard v. 1.'ecumsehMills, 151 Mass. 85,23 N. E. Rep. 731;
'1'uttlev,.Rq,ilway 00.,122 ,TJ. S. 195, 7 Sup. Ct. Rep. 1166: Townsend v. Lartgletl, 41 Fe(1. Rep. 919. . .. '
" ·· j

one 'ofagang of stevedores employed a cargo ofironore from the British steam-ship Serapis in the ,(>f Baltimore. During the of the he was assigned by theJwad .stevedore to the duty of running the forward steam-winch. By theuse,Qf another winch the ore in buckets was being hoisted out of No·.2 forward hole, an,d,the which libelant was attending was used to, draw the crane from the wharf. He had.to stand facing the winph, looking forwa"d towards the bow of the lship, and was requiredfQr the proper performll.nce of his duty to turn his head from time to time, to see the position of tbe bucket behiQQ him, and to turn quicklya,ncl or open the steam-valve by revolving a wheel in front hand. While engaged at this work. and turning from looking back at the bUoket, and having to take hold of the valve wheel, he out his hamt a little to far.i ,and it was Qaught between .the cogs of the directly in front of him. .His hand was so .crushed, he has lost the .use of it. , Three fingers have already beep. amputated, .w;ltb" the probability that the remaining one will have to betaken off, him only an almost useless stump. The to fqr hi,S iQjijry upon the ground that the winch'was dangerous to anyone working at it to unload .the ship, and that the negligence on the part of the ship-owners in having it in this dangerous condition renders' 'them liable' in this suit. The winch is of a kind called by some of the witnesses a "camel-back winch." 'rhe steam is controlled by a valve near the deck at the feet of the winchman, from which a valve-stem ril:les abontthree feetdirectly in front of him, on which is a wheel bywh'Hlh iti'S 'tutned. 'As the winchman stands facing the winch, with .his left hand on the reversipgbar and his right hand on the wheel, the cogs of two wheels which drive the axle meet in . front ofhi(1'ight between the circumference of the wheel and the nearest poillt ,of the cogs is differently stated by the witThe libelant it or eight inc.hes, and several other witnesses called by hirnsay it was from five to six inches. The of the master 'or the ship is that the of the cogs IS 12 inches from the wheel, but he leaves it uncertain from what points his measurement was taken. The contention on behalf of the libelant is that the valve-wheel was nearer to than is. usual in such winches, there is, a"c,overingorcasing over tM :cogs to protect the 'winchmaQ from accidents;' There were no witnesses examined as to the construction of the winch, other than the stevedores 'called by the libelant, and master and mate examined on. behalf of the. owners. The stevedores, who were allm1ih of long expet:ience, I\ay that 'of such,winches .on!l without acasing.;or cover over the cogthey have wheels; in other Mthis kind they have al-. ways higher, greater distan¢e from the ex>gs. The, lib¥t at.a h,ul1dred different winches

J. The

THE SERAPIS.

395

on steam-shipe, and that in all others the wheel was further from the cogs. He testifies as follows: "I thought it was. a queer apparatus. I said to the mate, · You ought to have something over the cog-wheels.' The mate said to me, · You be a little careful, and it will be all right.' I thought it looked dangerous to run, and thought if I spoke of it to the mate he would put something over the cogwheels." The libelant first ran the winch for four hours in the night-time, and the next day had run it for an hour and a half when his hand was caught. He testifies that he could not keep his hand on the valvewheel and turn his head so as to see the tubs; that he was drawing in the slack chain by reversing the winch, and had turned to watch the tub, and was turning back· to the winch to stop off the. steam quickly. when, in placing.his hand upon the whelil, he put it out a little too far, and it was caught. Another steveuore,-Tracy,-who was also running this winch the night before the accident, testifies that the mitten on his hand was caught in the Ilame way, and taken off his hand. That.he mentioned t}.)is to the donkey-engine man, in charge, and told him that it ought to have a CO\ier on it; but the man onlysaid, "Be careful." i From the testimony produced in this case I am unable to come to any other conclusion than that this winch was dangerous, and not proper to be furnished for work in whioh it had to be run continuously for hours by a workman who has to turn to see what is going on behind him. and has to start and stop it with great quickness. There is no testimony; from which it can be interred that the libelant was careless. Indeed, with the large open cogs undefended by any safeguard so near to his hand, it would seem that itwould only be by good tortune that he could: escape injury with the best attention his work permitted. Such a winch might be reasonably safe for hoisting an anchor, or raising sail, or any! such short occasional use,in which the winchrnan could keep his eyes in front of him, with Bome one standing by to give him orders, but not for the continuous use which the work of hoisting out a cargo of ore· re-' quires. The testimony preponderates which goes to show that other such winches used for taking out cargoes have the cogs guarded, and tha:t in this winch the man's hands had to be nearer to the cogs than is usual. Nothing ought to justify providing a machine so likely to maim the operator, except necessity arising from the difficulty of obviating the danger; and it is apparent that the danger can be obviated by an pensive casing, or by a very simple alteration by which the valve-wheel could· be placed further {rom the cogs. The rule is fimlly establish'ed that the employer is bound to see that the machinery furnished is reasonably safe and suitable for the purpose for which the employe is ·expected to use it. . .. The difficulty in the case arises from the fact that libelant saw and was aware of the defective construction of the winch, and the datlger tending. its. use. It contended by that the libelant, in .goingto work at it, entered upon a contract to work at that particu;.' lar maphiI:le, with .,(ull knowledge of its detects, and that, therefore; he' cannot reC0Ver. il: do not think this statement quite fairlygives:the sUb->'

FEDERAL. REfORTER,

vol. 49.

of the transaction. The under the foreman of the stevedores, was employed generally to do any work usually done by steved<?res in unloading a cargo of iron are from a steam-ship. He knew tlptping of the winch until his turn came to run it. He expected to find l\uch.a winch as was usual on such steam-ships, and reasonably safe. of its defect to an officer of the ship, but went on with his engagement as a stevedore, and ran ii, exercising such care in its use as permitted. This does not seem to me to amount to a contract a defective· winch, but ,rather to be a.contract to assist in unIqaqiQg the ship, with the incident that in the performance of that enthe libelant. to use a machine furnished to him 'Yhichpe knew to be dllngerous after the employer had declined to alter it. ',i,\tjqolnmonlaw, nnder such facts J it could scarcely be contended lipelllnt was entitled to recov,er. At commonlaw, if his emof in f,:rnis;hing him with an mato use, then, 10 knowmglt was unsafe, .he used 'It, he was also"au:d his contributory negligence would, as a Hf :tlJ. hill recovery.. ad miralty .this is not' the rule. peghgeuqe4o.es not of Itself necessatily bar recovery, but at li1?ilrty tbedamages upon principles of ,to hold th,e lIable for pal'tof the employe's peThe Mqa; Morru, 137 U. S. 1, 11 S\lp. Ct. Rep. 29;. same district Court, 24 Fed·. 860, and io.. the circuit.court, 28 881.. ' . . . whetheru.·si.ng to be ,defective dana.hsolutdy bars recovery of Jtself, or .IS only eVIdence tendmg to negligence, is not without decisions both ways. In it is most. frequently of no importance how it is re. hether the by an em,p.loye. o.f.a machin? with knowledge qf defects IS held to Qe a contract by hIm to assume the from it, or is held to be evidence of contributory negis equally without remedy. But even at common la,W, the general adoption of Ill;achinery driven by steam, the injUril*J, from which are so severe, the rule that the employe is to be deemed the risk of all danger by continuing to use such maknowledge of been declared to be subject to '\;er,y ro;antie:c-peptions. the decisions is to harmonize thos.e by adoptmg the prmcIple that the conduct of the emplqyei$t9 be'judged by all the circumstances which go to show whether riot j all the circumstances of his employment, a reasonably prurpanwould have contioued in the employment with the knowledge which the employe had; thltt is to say, was his conduct reasonablY. prudent, or was it negligent and reckless? In Sherman and Negligence (sections 208, this is stated to be the result adjudications. Section 208 is as follows:

....

0,

"1'

.

j

"

·· ,

of the master from liability to servants for injuries causpd which the servants knew 01' ought to huve known is founded solely qponth" Il;lW of contributory negligeuce. and tllt-refore the liability of · cases by l'e!erenceto that law.", . .!
by

,"

THE SERAPIS. '

397

The proper rule for tbeguidance of theadmimlty cO,urts of the United States, where there is contributory negligence in cases of marine torts, haa been authoritatively settled by the supreme court in The MOIX Morris, GUpra, affirming the rulings of Judge BROWN in the district court for the couthern district ofNew York, and of Judge WALJ,ACE in the circuit court. The very question of the effect of contributory negligence in a similar action for personal injuries was certified to the supreme court, and, in answering, Mr. Justice BLATCa.FORD, speaking for the court, said: "Contributory negligence in cases like the present should not wholly bar recovery. There would have been no injury to the lihelant but for the fault of the vessel; and while. 01) tpe one hand" the court ought, not to give him full compensation for Ilis injury. when himself was partly in fault, it ought not. ,on theother hap,d,.' to' berestrai,nlild from saying that the fact of his negligence shc:mld not dllptive him of all of damages. As stated bytbe dlst:dct, jUdge in his 'opinion in the present case. the more equal of justice. the dictates'of humanity, the safety of Ufeand limb, andtti.e Pill);. .lic.good will be best promoted by holding,vessels IilLblil to bear some part qf, the actual IQl!s I:>y l.ike where their fault is clear, provided the libelant's fault, though evidll'nt, is neither willful, nor gross. nor inexcusable, and where other circumstances present a strong case for his relief." This libelant has, in my judgment, made out such a case. He, a age, has lost his right sober, industrious, skillful workman, hand in the service of the ,Owners' of'this Iltoom-ship. He has lost it because, notwithstanding his fears with respect to the danger, he consented''tO' USe a machine which was apermanent.equipment, ofthia ship, and furnished by them as safe and proper for his use, but which, upon the evidence, I find was unsafe and dangel'ous,and which, it is apparent, could without difficulty have been guarded by them so as to have been sIlJeand·f3uitable. It is not just tbatthe Ship-owners should proyide f:luch a machine, and throw all the risk of using it upon the i:ullucky workman who may chance to be injured by it. I have held this c8se for some time advisement, for,altbough at the hearing I was of opinion that the decisions cited by counsel for the owners applied to the facts of this case would bar any reGovery by the libelant, the hardship of this result was such as to lead meta hesil>t!night tate and. to doubt its correctness. A careful recol)sideration me to the conclusion that the libelant, having brought his action in ad- ' miTalty, is entitled to have applied to it, not the rules which would controlit at common law, but those which acco'rdwith the DoW recOgnized principles which are to govern our admiralty cGurtsin dealing with marine torts. I am aware that learned and experienced judges have in quite similar cases held differently. The,case of The Maharajah, 40 Fed. Rep. 784, is a strong case in favor of the contention for the steamer, but in the present case the evidence that the iWinchwasunusu.al and u.nfit .is fuller, and notice was given of its defect; Moreover, thedeoision in the Maharajah Case was rendered before the supreme court had fully sanctioned t\le equitable. ruling oithe same learned judge, in the case of The Mcu: JfJ>rri8. .

FEDERAL REPORTER,: vol.

49.

The amount claimed by the libelant as compensation for his injuries the steam-ship had solely in fault this would be a I shall divide this amount, and award him $1,500. The 'only testimony on behalf of thE! steamcship is the depositions of r.he master and mate, taken at Beaufort,S. C., to which port the steamer had gone for a cargo. The depositions were ,taken on September 22d, onder a notice served on libelant's proctor, in Baltimore, on September 19th. This was not a reasonable notice, as it did not allow sufficient time for the libelant to be represented at the examination and to crosswitnesses. The depositions were returned to this court and opened on September 25th, and upon motion of the libelant's proctor the heMifig'of the case was' set for October 22d. The motion to su ppress the. depositions was not made until. the' hearing. Under the circumstances, r hold .that the motion to suppress was made too late, and I the depositions. Tbe of the Q}aster and mate is very guarded and formal, and not sufficient to affect my mind on the question of the unsuitableness of the winch for the purpose to which it wasput. -I will sign a decree for $1 ,500 and half the costs.

THE TRANsFEB,. No.5.

NORWICH &:

N.

Y.;,PROPELLER

Co.

11. THE TRANSFER

No.5.

(Dt8t1r£ct 001&"" & D. New, York. ' January 22, 1899.)
Bows WJ'TIIOUT ANSWER TO SIGNAL. , ,,' , ' The tug Ttallsfer:No.5,Wlth a car-float along-side, had come up the East river at night, and was in the of HeUGate, in the neighborhood of the Astoria fer!}", an,d about 150 feet from the Lonll' Island shore. The steamer comlUg westj rounded Hallet's point, and went'down the east channel. Seemg the grlilen light" of: tbE!' tug, she ,hastily assUIlied that the tug .was crossing towards ;Horn's hook,blew two whlstles,and, without waiting for, an answer, stal'boarded. , The tug st-oppell, slowed, and reversed. hut the Boat and the Delaware came In col· lIslon. Bel(l, that the l'ollision WlliS solely que to the Delaware's f,ault in changing her course, and running into. the tug's water on her own signal, without waiting for anaullwer, and on a false assumption as to the tug's course, which she made at , her own risk.
ASSUlf1"J'JON OJ'COURSE-CIIANGB OJ' COURSB-CBOSStNG

In Admiralty. Suit to reoover damages caused libelant's steamer by collision with afloat in tow of the Transfer No.5. \ lor Page «'rq.,jt and Robert D. Benedict, for claimant. J:BROWN,Dis.triotJudge. About 3 o'clock in tllemoming of June 9, 1891, the tide being ebb, asthesteam.tugrrransfer No.5 was proceeding eastward through the easterly channel Of' Hell Gate near the Astoria shore, having a C81-tioat loaded: with cars lashed to her ,port side and