51.4'

I'BDERAL nP6RTER, 'vol.

6().'

risks of whose he, the 'said Johnson, also Blssumed.'Aswehave said before, the petition Ulvague, uncertain, and inconsistent, and' no such clear-cut allegations as claimed by plainti1f can be found therein. The judgment of the lower court is, reversed, and the cause is remanded to said· court to be therein further proceeded with, aIlow.ing,amendments and awarding a new trial, as law and justice may require; appellee to pay the costs of appeal.
SUGAR-REFINING 00. v. TATUM:. (Olretl1t Oourt of Appeals, FIfth Olrcuit. December 19, 1893.)
No. 154.

In Ij:rror to the Oircuit Oourt of the United States for the Eastern District of Louisiana. was an action by Arthur Robinson Tatum to recover damRg $agaipst the American Sugar-Refining Company for personal injuries sustained while in its employment. There was a verdict for plaintiff in the sum of $4,000, and, a new trial being refused, defen'dant brought the case upon writ of error. W. W. Howe and S. S. Prentiss, for plaintiff in error. B. R.Fol'1ll.an, Wynne Rogers,and Joseph N. Wolfson, for defendant in error. iJefore PARDEE and McOORMIOK, Oircuit Judges, and LOCKE, District Judge. PARDEE, Circuit Judge. The plaintiff below, who is defendant the following allegations as to citizenship and as to jurisdictiOD.()f the lower court, and there is nothing in the record to supplement them:
in error,

"The petitionot Arthur Robinson Tatum, a citizen of Louisiana, and residing in New Orleans, with respect showS that the American Sugar-Refining Oompany, a corporation domiciled and doing business in this city, and a citizen of New Jersey, and found within the eastern district of Louisiana, of which GeorgeS. Eastwicll:e is general manager, and authorized to accept service of legal process,is indebted to your petitioner in the sum of five thousand dollarS' ($5,000.00), for this, to wit."

The

stated his case as follows:

"That on and prior to 20th day of June, 1892, your petitioner was em· ployed by the said American Sugar-Reflning Oompany as a laborer to work at their refinery situated in this city. That under said employment petitioner was employe4, to work in the fifth story of said refiners, and under said employment was required to watch and care for large tanks used for the purpoaeof re,ceiVing suglU' that is pumped up through a large 18-inch pipe, running frqm said flfth· story to the first floor of the said refinery. That, after said pumping of sugar ceases, and the tanks having suffioient, the said 18-inch pipe is cleaned by the engineer on the first floor by his turuing on a strong force of steam through said pipe, which forces the sugar out, and thoroughly said pipe; and, should anyone be In close proximity to sadd pipe, he 1s11able to be scalded and killed. That said steam is always turned on immediately after the sugar-pumping ceases. That on said date, and at said place, without any warning, or notice by the said defendant

AMERICAN SUGAR·REFINING CO. V. TATUM.

515

company or its agents or engineer In charge of the engine on the first floor to petitioner or to the workmen on the fifth fioor, Where your petitioner was working, and in close proximity to the said pipe. his employment requiring him to be there, the steam was turned on with a great force, although the pumping of sugar had long since ceased, and your petitioner was badly scalded and burned, which caused him great bodily injury and pain, maiming and disfiguring him for life, and rendering him less able to earn a living for himself and family, and causing him great mental and physical pain, whereby he has been disabled from that day to the present, and will continue to be so for the balance of his life, or for a long time to come. That your peti· tioner was using due diligence and care on his part, and that the defendant company coUld have prevented the said disaster by the employment of a competent and trustworthy engineer, and by the use of proper appliances for the giving notice by the engineer to the occupants of the upper story, where your petitioner was engaged, either by messenger, bell, or speaking tube, which they neglected and failed to do. That it is the legal duty of the defendant company to maintain and employ competent foremen, workmen, and engineers to superintend, manage, and care for and direct their work, and thus prevent the disaster which occurred to your petitioner, and which they fidled to do. That your petitioner was lawfully compelled and directed to be in the place where he was injured, and had no notice or warning of the danger, and same was caused by the gross neglect ot duty on their part by not having the proper appliances and competent, faithful, and trust· worthy workmen and employes."

Defendant excepted to said petition, and the plaintiff amended as follows:
"The supplemental and amended petition of Arthur Robinson Tatum with respect shows: That in conformity with the order of the honorable judge presiding in the above-mentioned court, petitioner reiterates all the allega· tions Of his said original petition filed herein, except in SO far aBi the same is altered by this amended petition; and alleges further that the said Arthur R. 'Tatum was employed as a laborer by the said American Sugar-Refining Company, to work at their refinery, situated in this city; and that under said employment he was caused to work in the fifth story of said refinery, and was required to watch and care for large tanks used for the purpose of receiving sugar, which was to be pumped up from the first fioor into said tanks, which pumping was to be done by means of machinery operated by steam power, and which machinery was run by an engineer stationed on the ground floor of said refinery. That it is the custom and usage of sadd refinery that, immediately after the said tanks are su1liciently filled with sugar, warning is given to the occupants and workmen on the said fifth floor, where said tanks were sitwl.ted. That the pipe which co,nveys the sugar to saId tanks is blown out by injecting a strong force of steam, which warn· ing prevents the occupants of said fioor from being within close proximity to said pipe, their business requiring them otherwise to be engaged within close proximity to said pipe. That it is necessary that said pipe be cleaned by injecting a force of steam immediately after said pumping ceases, otherwise same would corrode, and would become clogged. That on the date men· tioned, long after said pumping had ceased, and contrary to the custom and usage of said refinery, the said refinery, through an incompetent, irresponsible, and untrustworthy person empkyed by them as an engIneer in charge ot said machinery, and without any warning (JI]' notice Whatsoever to your petitioner, who was engaged in his usual employment of stirrIng the con· tents of saId tanks, a strong force of steam was suddenly sent through said pipe, terribly scalding and burning your petitioner, which caused him great bodily injury and pain, and maiming and disfiguring him for life, and rendering him less able to earn a living for himself and family, and causing him great mental and physical pain, whereby he has been disabled from that day to the present, and will continue to be so for the balance of his life; or for a long time to come. That your petitioner, at the time he received the injury aforesaid, was engaged in his usual employment in said refinery, using due diligence and care on his part. Petitioner further avers that the said dis-

Q16

FEDERAL REPORTER,

vol. 60.

8l>lely by the neglect and gross carelessness of the said Oompany,· ..nd .that. they could have prevented the if:tl1ey had used due diligence and care in the employment of a competllntand trustworthy and by the use of proper appliances for tbegiving notice to the occupantt! of. the upper story, where your petitioner was engaged, either by messenger or bell or speaking tube, all of which they and failed to do.. Your petitioner alleges that by reason of and neglectful. acts. of the said American Sugar-Refining Company: ll,ft;)relilaid he has been damaged in the full sum of five thousand . dollars ($5,[email protected])."

The defelldant below excepteq further, as follows:
"And comes defendant, and also excepts to the 'supplemental and amended PetitiQn'of plaintiif, as well as to the original petition, and says: (1) That said petition, in its allegations, as well as in connection with sald original, is too vague and contradictory In its allegations to demand an' answer, or enable defendant to safely answer the same. And, if this exception be overruled{2) that, as ll.ppears on the face of the said petition. the plaintife he. was injured in the course of an employment, the risks of which he QS8umed, and by the act of a fellow servant or servants in the same employment, the dsks of whose carelessness he also assumed; and the said petitiOnS show no cause of action in the premises. And defendant praYs tblj.t tbese exceptions be maintained, and the suit dismissed with costs,"

These,exceptions. overruled, and, reserving the points made by them, the defendant below answered, with general and special denials as. to any neglect on its part, in any respect, as charged, and further stated as follows:
"Respondent further that, even if plaintUf was injured through any fault or negligence of reEij)ondent, its agents, representatives, or employes, as stated In the petitlons{which Is not admitted but specially denied), yet, even In sl1chcase, plaintife cannot .recover, because the saldplaintife was careless and neglectful In the premises, and by his own fault and negligence contributed to the .accident alleged and complained of in the petitions, and to its results. Respondent specilLlly denies the allegation in said petitions that plaintiff was using due care and diligence in the premises. Respondent further avers that if plaintife was' injured by the negligence of any employe of respondent, such employe was. a fellow servant of plaIntife, the risk Of wbose negUgenceplaintife assumed. Respondent furtber avers, that plaintiff was familial," with the appliances. used in said refinery, and the manner in which bis work· s-hould be done, and in which the work was carried on; and that he assumed all the risks of his employment arising from either the nature of the work, the machinery and appliances, or tbe negligence of his fellow.servants,"

made

$4,000, and, ·R new trial being refused, the case is brought to this court by writ of error, and the following assignment of errors was

The cause was tried before a jury, who rendered a verdict for

"(1) Tbe. court .erred in entertaining jurisdiction of the sald cause, and rendering said judgment, said court, on the face of the record, having no jurisdiction of the cause, and the averments of citizenship of this defendant, as stated in the petitions, not being sufficient to give jurisdiction 'to the court. ftlI.d 1;b.ere being no federal question in the cause. (2) Said court erred in overruling the first exception to the supplemental and amended petition, as well as to the original petition, filed in this cause on the 15th day of February, 1893, and in requiring defendant to answer in the cause: the said supplemental and amended petition of the plaintife, and the original petition 8S well, and the .same when taken together. being too vague and contradictory in their· allegations to demand an answer, or enable defendant to lafely answer the same. (3) Said court erred in overruling the second ex-

RED RIVER LINE V. CHEATHAM.

517

ceptlon 111ed In this cause on the 15th day of February, 1893, to the supplemental and amended petition, as well as to the orlglnal petition, it appearing on the face of said petitions that the plaintiff was injured in the course of an employment, the risk of which he assumed, and by the act of a fellow servant or servants in the same employment, the risks of whose carelessness he also assumed. and the petition showing no cause of action in the premises. (4) The said court erred in giving the charge to the jury at the request of plaintiff, and against the objection of defendant, in the following words: 'That, where it is the custom or uniform practice of a company to give certain signals to warn workmen of approaching danger, or that anything will be done requiring them to repair to a place of safety, and by the failure to give such signal a workman or employe is injured, the company is liable. It is, in such case, not negligence on the part of the workman to rely upon such being given; but it is negligence of the company to omit to give such customary signal,'-as more fully appears from the bill of exceptions allowed, signed, and filed herein on the 10th day of April, 1893."

The questions presented as to the jurisdiction of the circuit court, and of the sufficiency of the original and amended petitions, are the same as in the case of Refining Co. v.Johnson (just decided) 60 Fed. 503, and they must be ruled in the same way. The questions presented by the other assignments of error need not be considered, as they may not arise on another trial of the case. For the reasons assigned in Refining Co. v. Johnson, the judgment of the circuit court is reversed, and the cause is remanded, with instructions to permit amendments and award a new trial as law and justice may require, the appellee to pay the costs of this court.
RED RIVER LINE v. CHEATHAM.

(Circuit Court of Appeals, Fifth Circuit. January 2, 1894.) No. 162.
1.

ADMIRAI,TY ApPEALS-NEW EVIDENCE-WHEN AI,LOWED.

New testimony will be admitted on appeal when the court is of opinion that, under all the circumstances, substantial justice requires it, although a perfectly satisfactory excuse is not given for failing to produce the testimony below.
It is the general usage on the Mississippi and its branches to land steamboats having stages operated by steam, f()r the delivery of small quantities of freight, by running the bow into the shore, and holding the vessel in position by revolutions of the wheel, without putting out lines; and therefore any risk attendant UP()U this methoo is assumed by the whose business it Is to pass over the stage in delivering or receiving freight 56 Fed. 248, reversed.

2.

SHIPPING--NEGLIGENCE-LANDING OF RIVER STEAMF;RS-CUSTOM.

8.

SAME-FELLOW SERVANTS.

Negligence of a steamboat fall tender selected from the crew, In slacking the fall controlling a stage operated by steam so as to cause the drowning of a member of the crew, is negligence of a fellow servant, f()r which the owner is not liable.

Appeal from the District Court of the United for the Eastern District of Louisiana. This was a libel in personam filed by Thomas Cheatham, as tutor of Bernice, Ruby, and Maggie Brooks, against the Red River TAne, to recover damages for the drowning of James Brooks through