THE ISLANDS. LONERGAN
Jqr8t1/. August 19, 1886.)
MAsTER AND SERVANT -LIABILITY OF MASTER FOR NEGLIGENCE OF FELLOWSERVANT.
Where a person, while assisting in hoisting and shifting coal on board a steamer, was injured by the falling of a skid caused by the incompetency and carelessness of a fellow-servant. and not by any defect in the machinery, the steamer was not held liable for the injury 1
In Admiralty. Charles E. Hill, for libelant. Jas. K. Hill, Wing et Shoudy, for claimant.
WALES, J. This is a. libel to recover damages for personal injuries. The libelant on the thirty-first of October, 1885, while shoveling coal on board the steam-ship Islands, then lying in her dock at Hoboken, New Jersey, was seriously and permanently injured by the falling of a heavy skid on his left leg, which was so badly crushed as to require amputation below the knee. He alleges that the accident was caused by the carelessness and negligence of the officers or other persons in charge of the ship. He had been employed. with several other longshore-men, by a stevedore named Myers, to assist in hoisting and shifting the coal, and was stationed on the between-deck to help in filling the empty tubs as they came down. The tubs. holding about 400 pounds each, were hoisted by a steam-winch driven by an engineer in the employ of the ship. The fall and tackle had been rigged under the personal direction of Myers; the rope, etc., being taken from the locker of the ship. The first rope selected for a fall was too short; and another being obtained, which also proved to be too short, was lengthened by attaching to one end of it, by a bowline knot, a chain-sling. A double whip was rigged, so that an empty tub went down as a loaded one came up. Two skids, each eight or nine feet long, by three feet wide, were placed loosely athwart the 'bunker hatch, three and one-half to four. feet apart, and extending half a foot over each side. leaving enough space for the easy passage of the tubs between them. A gangway-man atood on each skid to keep the fall and tubs clear of the edges. The libelant had been working for almost an hour, when the after-skid was upset by the bowline or tub coming in contact with it, and fell below on the libelant. The complaint is that the sling was not fastened to the rope by a splice instead of a bowline, and that the skids were not tied to the sides of the hatch; that, if either of these things
lSee note at end of case.
was about the size of a man's fist. The chain.sling was provided with a hook to hold the handle of a tub. Exactly how the accident happened-whether by the bowline, the hook, or the tub catching or striking the skid-does not appear. No one saw it. The gangwayman, Deady, who stood on the after-skid, and whose duty it was to keep the rope and tub clear on that side, was unable to tell. He first said that the bowline caught and threw over the skid, but, on being questioned further, admitted that he did not see the fall catch, "but it was said that it just happened in a second," etc. He had his hand on the rope at the time, and he "had to keep it pretty clear, as it was going more astern all the time." He gave the signal to the engineer to go ahead. He also said that "the skids were that close together all the time it was a pretty sharp lookout for us that the tubs would not strike them." Evidently this man, by culpable inattention to his duty, was, as far as human agency is concerned, directly responsible for the accident. It was not very difficult to keep the rope or tubs clear of the skids, for it had ,been done on this occasion prior to the accident, and on hundreds of occasions before in, the prosecution of the same kind of work, with precisely similar appliances, including bowline knot, and loose skids. It is customary with longshore.men to use bowlines as often as splices under like circumstances; and, although the latter may make a smoother fall and offer less obstruction. the former are not considered to be specially or ordinarily dangerous. The skids are seldom fastened to the sides of the hatch; the workmen, for the most part, preferring to have them laid over loosely, so that they may go on deck without the trouble of unfastening them. The general custom is not to fasten them. The libelant thought the skid was tied. but the weight of evidence as to the custom is as just stated. One of his own witnesses, Lynch, could not say whether or not the skids wer.e fastened at the time of the accident, but he had worked hundreds of times when they were not. Under this view of the facts preceding and attending the upsetting and fall of the skid, it is suf· ficiently clear that the misfortune which befellthe libelant was solely due to the negligence and fault of a fellow-workman; and, according to the well-settled rule and policy of the law, he must be presumed to have accepted all risks of incompetency and carelessness on the part of his fellow-servants engaged in the same work. Without there is something else in the case, he is therefore without remedy. But it was contended by the libelant's proctor that the instruments and appliances furnished by the ship for hoisting the tubs were insufficient and defective; that the rope used for a fall was too short, and had to be lengthened by the dangerous bowline; that the skids were not provided with fastenings; and that the accident was the reo suIt of these deficiencies. If this were so, there might be some ground for holding the ship liable, since the libelant did not take the risk of
had been done, the accident could not have happened. The bowline
the strength or seourity of the ship's machinery, rigging. or structures. The evidence does not, however, support such a statement of facts. The officers of the Islands had nothing to do with the shifl;. ing of the coal, except to direct where it should be deposited. The stevedore was employed to do the whole work. He engaged the men, he and they being paid by the day by the ship, and superintended the work from beginning to end. He procured the rope from the ship's locker; and if there was negligence in tying the bowline, instead of making a splice, the fault was his, and not the ship's, and the same may be said in reference to leaving the skids unfastened. The evidence does not show that it was any part of the duty of the ship's officers to supply any of the machinery, rigging, o! articles used by the stevedore, excepting, perhaps, the steam-winch. After a careful considel'ation of the whole case, we have been unable to find any facts or principle which would justify a decree against the claimant. The Harold, 21 Fed. Rep. 428. a case clearly resembling the prosent one. contains a clear exposition of the law applicable to a like condition of facts. The opinion of the learned judge, and the authorities cited by him, fully sustain the conclusion to which we have come. The libel must be dismissed.
NOTE. Respecting fl'eedom from liahility on the part c r the master for an injury caused by the negligence ofa fellow-servant, see Northern Pac. R. Co. v. Herbert, G Sup. Ct. Rep. 590: District of Columbia v. McElligott, 6 Sup. ct. Rep. 884; Trihay v. Brooklyn L. M. Co., (Utah,) 11 Pac. Rep. 612, and note: Kansas Pac. R. Co. v. Peavey, (Kan.) 8 Pac. Rep. 780, and note; Gardner v. Michigan Cent. R. Co., (Mich.) 26 N. W. Rep. 301, and note, 306; Hoar v. Merritt, (Mich.) 29 N. W. Rep. 15, and note: Baldwin v. St. Louis, K. & N. R. Co., (Iowa,) 25 N. W. Rep. 918: Matson v. Chicago, R. I. & P. R. Co., (Iowa,) 25 N. W. Rep. 911; Farmer v. Central Iowa Ry. Co., 24 N. W. Rep. 896, note: Chicago & N. W. Ry. Co. v. Snyder, (111.) 7 N. E. Rep. 604: Clifford v. Old Colony R. Co., 6 N. E. Rep. 751; Benzing v. Steinway, (N. Y.) 5 N. E. Rep. Pittsburgh, C. & St. L. Ry. Co. v. Adams, (Ind.) 5 N. E. Rep. 187. and note. 197; Umted States Rolling-stock Co. v. Wilder, (Ill.). 5 N. E ..Rep. 92; Philadelphia 1. & S. <;:0. v. Davis, (Pa.) 4 At!. Rep. 513; Dealeyv. PhIladelphIa & R. R.Co., (Pa.) 4Atl. Rep. 1,0; New York, L. E. & W. R. Co. v. Bell, (Pa.) 4 Atl. Rep. 50, and note: Reese v. Biddle, (Pa.) 3 Atl. Rep. 813; Chicago, M. & St. P. Ry. Co. v. Ross, 5 Sup. Ct. Rep. 184; S. C. 8 Fed. Rep. 544; Garrahy v. Kansas City, St. J. & C. B. R. Co.,2.5 Fed. Rep. 2.58, and note, 262; Howard v. Denver & R. G. Ry. Co., 26 Fed. Rep. 837 ; Conley v. City of Portland, (Me.) 3Atl. Rep. 658, and note; and also note to Whitelaw v. Memphis & C. R. Co., (Tenn.) 1 S. W. Rep.· 39.
HENRY V. SOWLES.
(Di8trict Oourt, D. Vermont. August 23, 1886.)
COURTS-UNITED STATES DISTRIO'l' COURT-JURISDICTION.
The United States district court has jurisdiction of an action, under the fourth subdivision of section 563, Rev. St., brought by a United States mar· shal to protect money in his hands as such, and when wrongly interfered with in its possession, or when his right to it as marshal is invaded.
Motion to Dismiss for Want of Jurisdiction. Kittredge Haskins, U. S. Atty., for plaintiff. Edward A. Sowles, pro se. WHEELER, J. This is an action of trover, brought to recover damages for the conversion of a'sum of money, in one count described as "$3,000 in money," and in another as "$3,000 in United States treasuryand national bank notes of various denominations and value," by the plaintiff, in his capacity of United States marshal for the district of Vermont. It is alleged in each count that the plaintiff was possessed of the money in his capacity of United States marshal as aforesaid, and lost it; that it came to the hands and possession of the defend. ant thereafterwards by finding, who, well knowing it to be the proper goods and chattels of the plaintiff in that capacity, refused to deliver it to him on demand, and converted it to the defendant's own use. The parties are both set up as citizens of the state of Vermont. The defendant has moved to dismiss the suit for want of jurisdiction 01 this court. The jurisdiction of this court is different from that of the circuit court, in such cases. That court was given jurisdiction by the aClt of March 3, 1875, of all suits of the required' amount, arising under. the constitution or laws of the United States. 18 St. at Large, 470; Supp. Rev. St. 173. If the plaintiff's title to this money would aris . under those laws, so as to give that court jurisdiction under that act, as it probably does, that act does not extend to this court. The jurisdiction of this court, if it exists, is to be found apparently only in the fourth subdivision of section 563, Rev. St., which gives jurisdic. tion to this court "of all suits at common law brought by the United States, or by any officer thereof authorized by law to sue." This is a suit at common law, and the plaintiff is an officer of the United States beyond question. As such officer, he is entitled to the custody of money. Rev. St. §§ 787,791,3616, 3617,5504. He may receive it as disbursing officer of the government, or by virtue of the execution of civil or criminal processes. When he receives it as marshal from any of these sources, he receives it in his official capacity. That capacity is the foundation of his title. In this case there is nothing alleged to show how he came by this money. It is merely alleged that he held it in his official capacity as marshal. v.28F.no.9-31