1'EDEL\L ' BEPOllTJllB t

voL 50.

(No. 42.)

NEWYOmc& T.S. S. Co. ".

«)'Vcuit. Court Qf',Appeau, Secc>ncl QircuU. February 16, 1899.) No. 42,"LSTER A.ND SBRVA.NT-PBRSONA.L INroRIllI_CONTRIBO'l'ORT NBGLIGBNCB.

If.

B..

, . Iu an actiou .by a sailor for personallujuries caused by the ueglig"mt haudliug of ".. winch while the vessel was discharging cargo, it appeared that the winch was operated by a man from shore, acCording: t.o ,whistle signals given by the sailor, ,and,. his neglect of the .caused. the injuries. Plaintilf testified that tbe winlihman had informed hUh of his and requested him to whistle loudly. 'The winchmau'e carelessness, had causedtbe breaking of some barrels hefore the accident in question, llut np to that time (an hour or more) he had obeyed the signals 'as Held, that· it' was . refuse an instruction that plaintilf's OOntlnUlng bis work with knOWledge, 'of tbewinchman's incompetency would pre!!l.ud,s a recovery" since it is for the to determine whether or not be was justi"fil!d.ln' believing, until tll.e acoident,'tbat the wiuohman oould handle the winoh propefiy. ' Statements made by. the wluchman tbe saUor in reference to bis deafneu are ,oompeteilt'evidence as part of the resgest<& , The statements tile wiDobman's, deafness, and bis carelessness in breaking tbebarre.Is by lowerlng tbem too rapidly,; are mord than a sCintilla of evidence of lu41cient to Justity the submission of the question to the ury. , The circuit courts of: appeals bave :no powElr' to review n decision refusing to grant a new triai on the ground that the verdict was &iainst the evidence, and was for excessive damages. ''1 Fed. Rep. 88, atllrmed.
' ()BST....

I. ApPBAL-RBVIBW-RBFUSAL OP NEW TlU:u..:...ExCESSIVB VBRDICT.

Error to the Circuit Court of the United States for the Southern Di&trict of New York. . :At Action by Charles Anderson against the New York & Texas SteamshipCompany fOT personal injuries. Verdict and judgment for $4,141.67 for plaintiff. 47 Fed. Rep.3S. Defendant brings error. Affirmed. Bulkr j Stillman ere Hubbard, (Wilhelm", Mynderse, of counsel,) for plaintiff in error. . George L · .CarliBle,' for defendant in error. Belore WALLACE and LACOMBE, CiroUit Judges·

.'PER CtmIAM. This is 'a writ of error by the defenffant In the court below to re\'iewa judgment of the circuit court, entered upon the verdict of It jury for the phHnti'ft'. 'l'he plaintiff was a seaman, 'one of the crew Of the steamship San,Marcos, and while he was helping discharge cargo at ,the port of Key W'f!st 'received severe injuries by' being struck by lome of the cargo while itW8S raised from the hold. The plaintiff,:recovered upon thtdheory that ?is hljUries were ,caused by the carelessnesS' of a. fellow winchman. who had the management steam winch. by Which the was being raised from the hold, -and that' the·defenclsnli.wasnegligeht in that the winchman was incompetent for his place. Error is assigned because the trial judge refused to direct the jury to find a verdict tor the defendant, because he refused to give certain specific instructions to the jury, requested bl

NEW YORK

&,:r.

S.:S. CO·. tI. ANDERSON.

463

the Mfenr(ant, and because he: refused to se't aside the verdict asoontrary to evidence upon :the motion of the defendant for a new trial. The plaintiff was stationed on the upper deck, to receh'e the cargo as it reached him, loaded in slings, from the hold, conduct the slings to the side offue vessel, and start the load down the skids to the dock. Other men,some from the crew and saine from the shore, were at work in the' hold, filling the slings with cargo; and orie Bronson, a man from the shore, had charge of the steam winch by which the cargo was hoisted and lowered. Bronson's winch was between decks, and it was his duty to operate it according to signals to be given to him by the plaintiff by blowing a steam whistle. The signal to ra.ise a load was one blast, the signal to stop was one blast, and the signal to lower was two blasts, According to the testimony of the plaintiff, after the work had proceeded for an hour ormore, and when a sling of cargo had been hoisted from the hold and conducted by him to the rail of the vessel, he blew one blast of the whistle as a signal to raise it so as to carry it over the rail. He testified that this signal was. obeyed, anq he then blew one hlast to stop, which was not heeded, whereupon he repeated the signal almost instantly, but that Bronson, instead .of stopping, lowered the sling load, and it struck the plaintiff, and led to his injuries. The only testimony on the trial to indicate that the winchman was incompetellt; because of deafness or otherwise, was given by the plaintiff himself. He testified that before commencing work Bronson told him to blow: the whistle very loud, as he was deaf, and could not hear very well; that previous to the accident, while the cargo was bl1ing unloaded, llome barrels were broken. because they were lowered too fast, and at that time he heard a conversation between the master of the .steamship and two men standing by, in which. the master asked who. was at the winch, and one of them told him that the winchman. did not understand how to drive a winch, and was deaf. He also .testified that he could see that Bronson was not used to driving a winch, because "he to be scared of the steam, and didn't know how to use it." Everything thus testified to by the plaintiff was contradicted by witnesses for the defendant, as was also his testimony respecting the circumstancesofthe accident. rfhe judge instructed the jury, in substance, that the plairitiff was not entitled to recover found that the winchman was incompetent, either from deafness or otherwise, to an extent rendering him unfit for the duty to wbichhewas assigried. He also instructed them, in substance, that the plaintiff was not entitled to recover if he was negligent himself in continuing to work after he had information of the deafness or incompetency of the winchrnan.· No exceptions were taken by the defendant to the instructions given,but the defendant requested the judge to give three additional instructions, and excepted to his refusal to do so. . Two of the. instructions thus requested and refused embodied the proposition that, if the plaintiff had information.that thewinchman .was incompetent, and continued to work without objection, he was not entitled to recover for an)njurycaused'by thewinchman's incompe-

464

J'EDERAL .REPORTER,

vol. 50.

tency. The third instruction requested and refused was covered by the instructions which the judge had already given, and does not require further consideration. After the rendition of the verdict, the defendant made a motion before the trial judge to set it aside as contrary to evidence, and for excessiveness of damages, and the motion was denied.. It is doubt· iul whether the refusal to direct a verdict for the defendant presents any valid exception. U. S. v. Bank of Metropolis, 15 Pet. 377. No grounds were,assigned as the basis for t:he request, and, as the defendant took no exceptions to the instructions ofthejudge by which he left it to the jury to decide the issues of negligence as questions of fact, it would seem that the pefendant acquiesced in his view that the case could not be disposed of as one which should not be submitted to the jury. We do not think the defendant was entitled to the specific instructions asked for, following the charge to the Dury, in the unqualified terms of the requests. The plaintiff, asa sailor,was:.amenable to rigid discipline for disobedience of orders. He was injured while discharging a duty to which he had been. assigned by his superiotofficer, and which he was performingunder the eye of the master of the ship. Notwithstanding what he liad heard and observed, about the deafness and inexperience of the winchman, for an hour at least, and, according to some of the witnesses, for a period of several ',hours, the winchman had' heard and obeyed the signals, and performed ,hi5duty properly. In view of these facts, it would have beenerfooneous to instruct thejury that, if the plaintiff had liny information that the, winchman was incompetent, or had all the in;' formation which he had been shown to have, he could not recover. Irrespective of the consideration that8ny complaint on his part would probably have been treated as an act of insubordination, the facts presented aiair question for the jury whether, notwithstanding what hehad heard and seen, ,he was not justified until the accident took place in believing that the \tinchman was sufficiently competent to manage,the winch safely. ' . Assuming that the general.request to direct It verdict for the defendant sufficiently raises the question whether there was sufficient evip,axt of the defendant to warrant the submission of the case to the jury, we are constrained to decide that there was. althOugh case for thepll1iritiffwas very weak, and was overwhelmingly disproved, by the. Elvirlence introduced by the defendant, and theverdiotwas one which it would seem could not have been reached upon any intelligentconsideratwn of the case. The :rule is that, when the evidence given at the trial, 'with all the inferences that the jury can justifiably draw from it, is insufficient to support a verdict for the plaintiff, so thatsucha'verdict, ifreturned,must be set 'aside, the court is not 'bound to submit the case tathe jury, but may direct a verdict for the klefenclant. RcmdaU, v.Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. :8221 Goodlett v.Railroad, 122 U. S. 391, 7 Sup. Ct. Rep. 1254. The statements made by the winchman himself were competent evidence as a part of the res ge8tl£, and the declarations of an agent of the defendant, made in theoourse ·of his duties. The jury were authorized to infer

IN RE CROWLY.

465

from the circumstances of the accident, and from the previous conduct of the winchman when the barrels were broken, either that he was inattentive and careless, or that he was inexperienced, or hard of hearing. The circumstance that the load of cargo by which the plaintiff was injured was lowered contrary to his signal did not necessarily require them to infer that the winchman was deaf or inexperienced. This may have happened as well in consequence of some casual inadvertence on his part,or by his pure negligence, or by some excusable mistake; and the fact that for an hour 01' more previously, while operating the winch, be had heard the signals given by the plaintiff, and had managed the winch properly, gave rise to a presumption of his competency which 'Was as cogent, if not more so, than any presumption against it arising from the fact· of the accident. But if thev believed that the winchman made the statement testified to by the we cannot say that, in conjunction with thil circumstances of the accident, and his previous <:loilduct with the winch when the barrels were broken, there was not something' more than a scintilla of evidence of his incompetency and sufficient to justify the judge in submitting the question to the jury. Railrotid Co. v. Stout, 17 Wall. 657. We regret that we have no power to review the decision of the court below in refusing to grant a new trial, based upon the grounds that the verdict was against the evidence, and was for damages., Persons v. Bedford, 3 Pet. 433, 446; Barredav. Silsbee, 21 How; 146. 167; Insurance Co. v. Folsom, 18 Wall. 237, 249: Railroad Co. v. Fraloff, 100 U. S. 24, 31. The judgment is affirmed.

In re

CROWLY.

(OtrcuU Court, S. D. New York. February 25,1892.)
CuSTOMS DUTIES"";GoODS INVOICED AS ENTIRETIES-SEGREGATION.

Certain importations were entered at the port of New York in February and March 18111. cousiljting of goods invoiced as wool robes with silk embroii:ery, silk and metal embroidery, and silk and cotton embroidery, which were in fact combination dress patterns; composed of worsted material separated into two parts. one partoontaining,the embroidery and the other part being plain, the value of each robe, con· sisting of two pieces, as above, being stated on the invoice as an entirety, and the value of each robe being given in francs. Said merohandise was classified for duty by tb,e COllector as "manufactures of worsted embroidered." and duty assessed thereon, at the rate of 60 cents per pound and 60 per cent. ail valorem, under paragraph 898, Schedule K, and the prOViso 'coutainedin paragraph 373 of Schedule J of the tariff act of October 1, 1890. Pr()t,est by the importer, claiming, that, the merchandise was,dutiable under Schedule K, par. 895, of said tariff act; at the rate of 44 cents per pound and'l!O per cent. aavalorem. BeW, that the decision of the board.. of ,values of t\1e robes so as to assess the duty upon the emoroideredand plain partso! each robe separately, should be af· firmed, but'tbat the cduI't would 'not consider the question of the correotness of the general decisi()n all to the rate of duty imposed upon the inasmuch statement of error.s against the d'!cisionof the board of general appraisers had been filed in the olrctllt court by, the Importer.
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V.50F.no.6-30