Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the jury very fully in a carefully prepared charge which covers 18 printed pages in the transcript of the record. The jury has given the plaintiff a verdict which is moderate in amount. Nevertheless we think it necessary to send this case back for a new trial.

The negligence with which the defendant is charged consists in two alleged omissions:

1. Failure to warn the deceased of the sudden release of the float from the bridge.

2. Failure to furnish sufficient light to enable the deceased to work in safety at the place where the accident occurred.

It was admitted in this court that no warning of the release of the float was given. At the trial the defendant introduced testimony to show that the Lehigh Valley and the D. L. & W. companies, engaged in similar operations, do not give warnings when a float is about to be released, but a man has to look out for himself. The following excerpt from the testimony tells its own story:

"Q. How does he know what is going to happen? A. He has two eyes.

"Q. Suppose he is working in the back of the boat, up very near the bumper? A. The way they work everybody looks out for' himself.

"Q. The boat does take a very violent drop when she leaves the toggle pins? A. Naturally; yes, sir.'

"Q. If, at high tide, she takes, you say, a bigger drop than at low tide? A. Yes, she would take a bigger drop at high tide.

"Q. And she will take a drop sometimes as much as six feet at high tide? A. More than that.

"Q. How much is the highest you know of? A. Eight to ten feet. "Q. You say a man should look out for himself? A. Yes, sir.

"Q. Suppose it is a watchman the first night he is on there and doesn't know anything about it? A. He stands on his own responsibility.

"Q. That is the way you work it? A. Yes.
"Q. That applies to the crew? A. Everybody.

"Q. If a float is going to drop six or eight or ten feet, and he doesn't know the drop is going to come, he is in danger, isn't he? A. If he don't know it, he has no business being there.

"Q. He is in danger when that boat is going to drop, isn't he? A. If he is in the way, yes."

The jury were properly instructed and at great length on this branch of the case and were charged, among other things, that if they were reasonably satisfied from the evidence that it was the duty of defendant to give notice to Gallagher before the release of the float from the bridge, and negligently failed to give notice, that would entitle Mr. Gallagher's administratrix to damages; and that the burden was on the plaintiff reasonably to satisfy them that it was the duty of defendant to give that notice.

The defendant asked the court to charge: "You cannot find any negligence on the part of defendant upon the ground that no warning was given that the float was to be released from the bridge.”

The request was refused and exception taken. This was not error.

We come now to the second allegation of defendant's negligence, in that it failed to furnish sufficient light to enable the deceased to work in safety. The bridgeman was examined as to the lights on the bridge at the time of the accident, His testimony was as follows:

"Q. Were there any lights on the bridge at that time? A. Yes, the whole business.

"Q. Now, where were the lights, if you remember, Mr. Stanton? A. Right over the entrance to the bridge on the bridge work.

"Q. And you now distinctly remember that the lights were lit there? Sure.

"Q. Did you have any difficulty in seeing the edge of the bridge and the floats on bridge 4, or only bridge 4, on that night? A. No.

"Q. Did you have any difficulty in seeing at that place on any night that you worked there? A. See what?

"Q. Were the lights sufficiently illuminated to see what you were working at at that place? A. Sure; they might once in a while go out-something might happen to the dynamo.

"Q. On this night they didn't go out? A. No.

"Q. Was it necessary for the bridgeman to have lights working on bridge 4 and the other bridges on any night? A. Yes, sure.

"Q. Was possible for the bridgemen to perform their duties without lights? A. Well, that I could not say.

"Q. You don't know? A. No.

"Q. It would make it hard, would it not? A. Yes, likely to get killed; that's about all."

Another witness, who was a floatman on the railway company's tug which was to pull out the float on which Gallagher was at work, and who was standing on the bridge about 15 feet from the point where the bridge met the float when the accident occurred, saw and recognized Gallagher when he was halfway down the float 100 feet away. He testified as follows:

"Q. And Gallagher was halfway down that float, or about 100 feet away from you, was he? Yes, sir.

"Q. And you saw him working? A. Yes, sir.
"Q. Did he have a light? A. I didn't see a light.

“Q. Were there any lights on the float? A. No, there were no lights on the float, but lights on Dock 8.

"Q. And were there lights on the bridge? A. Yes, sir; there was a light there.

Q. Those lights were right over your head while you were standing there, weren't they? A. Yes, sir.

"Q. And you could see plainly a distance of 100 feet, so that you could recognize Gallagher? A. Yes, sir.

"Q. From the time you first saw him nailing this door, you say after he had finished that job he came walking toward you? A. Yes, sir.”

In approaching the witness he was, of course, approaching the light on the bridge. One other witness, a deck hand on the tugboat, who, when the accident happened, jumped from the tugboat upon the bumper end of the float and then ran to the toggle end, was asked as to the lights, but testified as to the persons he saw and recognized on the bridge while he was standing on the float. There is not in the record any other evidence in the plaintiff's case regarding lighting facilities. The defendant by the uncontradicted testimony of seven witnesses established the fact that there was a cluster of four 100candle, power electric lights covered by a reflector about 15 feet from the place of the accident and that the lights were burning. The defendant at the close of the case stated that he had three other witnesses who, if called to the stand, would testify that the lights on the bridge were lit at the time of the occurrence of the accident and that

no system of warning employés of the release of the floats was used by defendant at that time. Counsel for plaintiff then conceded that if the witnesses were called they would so testify. There is absolutely no testimony in the case from any witness that the light was insufficient.

Counsel for defendant asked the court to charge: "You cannot find any negligence of the defendant upon the ground that there was not sufficient light at the place where deceased fell into the water."

The request was refused and an exception was taken. The refusal to give the request was error,

The rule is well established that a refusal to grant a specific request to withdraw from the jury one of several specific charges of negligence is fatal error if there is no substantial evidence to sustain the charge. The reason is that the appellate court cannot know but that the jury may have found its verdict upon the baseless charge. Wilmington Mining Co. v. Fulton, 205 U. S. 60, 27 Sup. Ct. 412, 51 L. Ed. 708; Deserant v. Cerillos Coal R. R. Co., 178 U. S. 409, 20 Sup. Ct. 967, 44 L. Ed. 1127; Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 712, — C. C. A. —; Chicago, St. Paul, M. & O. Ry. Co. v. Kroloff, 217 Fed. 525, 133 C. C. A. 377.

Judgment is reversed, and a new trial ordered.

WESTERN FUEL CO. V. GARCIA. *

(Circuit Court of Appeals, Ninth Circuit. February 3, 1919.)

No. 3195.

1 ADMIRALTY O 7-MARITIME CAUSE OF ACTION-STATE STATUTES.

Where a cause of action is maritime in its nature the rights, obligations, and liabilities of the parties are measured by the maritime law, unaffected

by any state statute. 2. ADMIRALTY 21-ENFORCING STATE STATUTE-SUIT FOR WRONGFUL DEATH.

While under the maritime law a suit cannot be maintained for the death of a person on the high seas or waters navigable therefrom, a statute of the state where the injury occurred, giving a right of action therefor, will

be enforced by a court of admiralty, if the case is of admiralty cognizance. 3. ADVIBALTY Cw21-ACTION FOR WRONGFUL DEATH-RIGHT OF ACTION GivEN BY STATE STATUTE.

A court of admiralty, in enforcing a right of action for wrongful death given by a state statute, will enforce it in accordance with the recognized principles of maritime law, unaffected by the provisions of any state or

local law, and hence it is not bound by a state statute of limitations. 4 SHIPPING 84(5)-INJURY TO STEVEDORE-ASSUMPTION OF RISK.

Conceding that a stevedore employed in loading coal into buckets in a hold assumed the ordinary risk from the occasional falling of a lump of coal, he did not assume the risk from the spilling of a large quantity into the hold through the negligence of the hatch tender. Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 255 F.-52

*Rehearing granted May 20, 1919.

[graphic]

Action in admiralty by Antone Garcia, administrator of the estate of Manuel Sousa, deceased, against the Western Fuel Company. Decree for libelant, and respondent appeals. Affirmed.

Ira S. Lillick and Hartley F. Peart, both of San Francisco, Cal., for appellant.

Henry Heidelberg and Christopher M. Bradley, both of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS, Circuit Judge. The widow and minor children of Manuel Sousa, deceased, filed, August 21, 1917, in the court below, a libel against the appellant and two of its employés, to recover damages growing out of the death of the deceased while working as a stevedore in unloading coal from the hold of the steamer Tancred, at the time operated by the appellant company under charter, and discharging its cargo at the Howard Wharf in Oakland creek, Cal.—it being alleged that the death of the deceased was caused by the negligence of the libelees in the improper handling of the bucket, by which some of the coal was spilled and fell upon the deceased, killing him, on the 5th day of August, 1916. Subsequently the appellee was appointed administrator of the estate of the deceased, and as such filed an amended libel, upon which the cause was tried. It will be seen from what has been said that the original libel was not filed until a few days more than one year after the death of the deceased.

[1]. The record shows, however, that on April 25, 1917, his widow and minor children commenced proceedings for the recovery of the damages sustained by them, before the Industrial Accident Commission of the state of California, pursuant to the provisions of the Workmen's Compensation Act of 1913 (St. 1913, c. 176), which commission awarded them damages, but which proceedings were subsequently annulled by the Supreme Court of the state, following the decision of the Supreme Court of the United States in the case of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, and other decisions of that court, the last of which was decided by that tribunal January 7, 1919, in the case entitled Union Fish Co. v. Erickson, 248 U.S. 308, 39 Sup. Ct. 112, 62 L. Ed. —

The present case being in admiralty, it is obvious that no provision of the California statute above referred to has any application here; the rights, obligations, and liabilities of the respective parties being measured by the maritime law. In addition to the cases already cited, see The Lottawanna, 21 Wall. 558, 575, 22 L. Ed. 654; Butler v. Boston Steamship Co., 130 U. S. 527, 557, 9 Sup. Ct. 612, 32 L. Ed. 1017; Workman v. Mayor, etc., of New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314; South Covington & Cincinnati Street Ry. Co v. South Covington et al., 235 U. S. 537, 35 Sup. Ct. 158, 59 L. Ed. 350, L. R. A. 1915F, 792; The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907; The Chusan, Fed. Cas. No. 2717.

[2] It is well settled that, in the absence of an act of Congress or a statute of a state giving a right of action therefor, a suit in admiralty cannot be maintained in the courts of the United States to recover damages for the death of a human being on the high seas, or on waters navigable from the sea, which is caused by negligence. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; The Alaska, 130 U. S. 201, 9 Sup. Ct. 461, 32 L. Ed. 923. Where, however, a statute of the state where the injury occurs gives such right of action, it will be enforced by a court of admiralty, if of admiralty cognizance. Authorities supra, and Buttner v. Adams, 236 Fed. 105, 149 C. C. A. 315; The Horsa (D. C.) 232 Fed. 997; 1 Corp. Jur. 1290, and cases there cited.

There being no United States statute upon the subject, the appellee's right to recover in the instant case must be found in a statute of California. Section 377 of its Code of Civil Procedure provides :

"When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just."

The right upon which the judgment of the court below rests was clearly given by that statute. Subsequently section 1970 of the Civil Code of California was enacted, which provides, among other things, as follows:

"An employer is not bound to indemnify his employé for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employé, or unless the employer has neglected to use ordinary care in the selection of the culpable employé: Provided, nevertheless, that the employer shall be liable for such injury when the same results from the wrongful act, neglect or default of any agent or officer of such employer, superior to the employé injured, or of a person employed by such employer having the right to control or direct the services of such employé injured, and also when such injury results from the wrongful act, neglect or default of a co-employé engaged in another department of labor from that of the employé injured.

In the case of Gonsalves v. Petaluma, etc., Ry. Co., 173 Cal. 264, 266, 159 Pac. 724, the Supreme Court of that state, after referring to the question as to the extent, if at all, the above-mentioned sections of the California statutes conflicted, said:

"It was for the consideration of this important question that a hearing before this court was ordered. Heretofore this court has not been called upon to determine the matter. Thus in Ruiz v. Santa Barbara Gas Co., 164 Cal. 188, 128 Pac. 330, we declared that in that case it was immaterial whether It be considered that the action was brought by virtue of section 377 of the Code of Civil Procedure or by section 1970 of the Civil Code. Again in Pritchard v. Whitney Estate Co., 164 Cal. 564, 129 Pac. 989, the only pronouncement of the court upon this subject is that 'so far as injuries arising out of that relation are made actionable where death ensues, where they were not actionable before, section 1970 is now the only statute authorizing the action.'

« ΠροηγούμενηΣυνέχεια »