The schooner arrived in the port of New York in May, 1885, and delivered & cargo of sugar in hogsheads and bags, part of which were damaged :bysea-water. The libelant charges improper stowage of the cargo, uDli\eaworthj,ness of the vessel because insufficiently.calked, and that her limbers were permitted to be clogged with sand. The answer admits the shipment, the charter-party , bills of lading, and payment of the freight; and avers that the cargo was well stowed, that the vessel was tight, staunch, and seaworthy. That during the voyage she encountered very heavy and severe weather, with high seas, ili which she labored heavily, shipped much water, became strained and damaged, and that the damage .to the cargo was caused by perils of the sea. On the trial the libelant abandoned all charges in regard to the stowage of the cargo, and expreSSly admitted good This left but two questions for discussion-.Fi1'Bt, whether the schooner was in good seaworthy condition as to repairs and calking when she undertook the voyage; and, 8econd, whether damage to the sugar arose from her limbers being allowed to become clogged up by the negligence of the master of the schooner. Upon these two questions much evidence has been taken. An examination of it has satisfied me that the damage in question must be attributable to the peril of the sea, and not to neglect on the part of the ship. The libel is ac. cordingly dismissed, with costs. '
THE FURNESSIA. 1
(Di8trict (Jourt, 8. D. New York.
June 1. 1888.
SHIPPING-CARRIAGE OF PASSENGERS-PERSONAL INJURIES-UNGUARDED HATCH.
Libelant. a steerage passenger on the steam-ship F" in coming down from the deck to go to his quarters, fell through the fore hatch in the lower betweendecks, breaking his leg, for which injury this suit was brought. The hatch was ordinarily kept covered, and passengers were in the habit of walking over it. On the occRsion in question the hatch had probably been opened to bring up prOVisions, but there was no light to enable libelant to see whether the hatch was open, nor was there any rail or guard around it. The libelant testified that he had never seen the hatch open, and did not know that it was liable to be open. No caution had ever been given the passengers in regard to the hatch. Held, that vessel was liable fodibelant'. injury, his damages being fixed a·t $1,600.
Libel for damages.
'Reported by Edward G. Benedict, Esq., of the New York bar. ing to insure the safety of the passengers, the omission is such negligence as will make him liable to a passenger WhO without fault himself, is injur.ed thereby. Anderson v. ScholeYl (Ind.) 17 N. E. Rep. i 25. See note,Id. See, 8UlO, as to the liability of common carriers for injUries to passengers, resulting from the carrier's failure to use proper degree of Merwin v. Railway Co., 1 N. Y. Supp. 267; Dougherty v. Railroad Co" (Mo.) 8 S. vv. Rep. 900, and note; Graham v. Railway Co., (MinD.) 88 N. W. Rep. 812; Railroad Co. v. Pillsbury, (DL) 14 N, Eo Rep. 22, and note.
IIf a common carrier of passengers omits any reasonably practicable precaution tend-
BEHRENS t1. THE FURNESSJA.
John A. Weekes, Jr., and James Parker. for libelant. Wing, Slwudy & Putnam, for respondent.
BRowN,J. The libelant, a young man 24 years of age, in' September, 18.85,. took passage on the steam-ship Furnessia from Glasgow to New York. He was a member of his father's family, for whom through tickets were purchased from Hamburg to Nicollet, Minn., via Glasgow andNew York. On the second day out, he and his younger brother were separated· from the rest of the family, and assigned to the quarter of the unmarried men, in the lower between-decks. His berth was a little forward'onhe fore hatch on the starboard side. The hatch was about 15 feet long by 12 wide, and was usually covered with a box cover. The lower flight oBhe stairway opened towards the stem of the ship, and was about 12 or 15 feet forward of the hatch. The hatch was usually kept covered, and the passengers, in going to and fro from their berths, were in the habit of walking over it. When four or five days out, the libelant, on coming .down from the upper deck to go to his quarters for supper, between Q and 6 P. M., fell down the hatchway, which was at that time open, and fractured his leg a little above the ankle. He was treated on the ship, and after arrival for 77 days in the Long Island hospital. Sixteen months later he filed this libel to recover his damages. The weight of evidence is that there was not sufficient light to apprise the libelant, as he went down to go to his quarters. that the hatch was open. Had the proof been clear that the hatches above were open, I should have lad no doubt that there was sufficient light to enable a person using ordinary care to see that the hatch was open. But the preponderance of proof is to the contrary. The lamps were not lighted, and there was no guard orprotectioil around the opening, save the low coamings, about 8 inches high,.over which, when the hatch was covered, the passengers were accustomed to pass. There was a passage-way of about four feet in width on either side of the hatch. The hatch had probably been opened for the purpose of taking up provisions; but during the considerable interval that had elapsed before the libel was filed, the seamen had been discharged, aAd the ship was without means of proving just what had been done, or why the opening was left unprotected. The habit of passengers to cross the hatch-covers could not have been unknown to the officers of the ship; and in the narrow space available to the steerage passengers, its use, m'ore or less, for that purpose was almost inevitable. It was the clear duty of the ship to provide reasonable security against danger, when the hatch was temporarily open, by means of a ra.ilor guards of some kind, and by sufficient light to enable the unusual danger to be perceived. The ship is therefore legally answerable for not having done so. The question of concurrent negligence on the part of the libelant is one of some· nicety. Had the proof shown that the libelant knew that the hatch was liable to be open during the dog-watch in the afternoon, When provisions were procured from the hold, if wanted, it would be difDcult to acquit him of negligence ill attempting to cross the hatch during
those hours, when it was so dark that he could not see whether the Cover was on or off. It is not common prudence for a person to step upon a hatchway in the dark, when he knows the cover is liable to be off. The brother of the libelant had seen this cover off a day or two before. The libelant testifies that he had never seen it off, and did not know thatthf" batch was liable to be open; and that he and the various other passengers in that part of the ship were accustomed to cross it frequently. No caution had ever been given to passengers in this respect, nor any prohibition against passing over the hatch; or, if given, there was no proof of it. As respects the amount of damages recoverable, there is much diver;. sity of view in the judgment of the medical experts who examined the libelant as to the permanent effect of his injuries and thfil extent of his disability. The libelant was brought up as a farmer. Upon his discharge from the hospital he went to Nicollet, upon a farm purchased there by his father,and has worked upon'it ever since. He testified that he continued to suffer considerable pain, and, though able to do all kinds of ordinary farm work, that he cannot do as much as before the injury, being obliged to rest oftener, through weakness and pain occasioned by the fracture. He estimates his loss of working power and value at about one-half. The respondent's expert estimated it at from one-seventh to one-tenth. The libelant testified that with such land as he would be able to chItivate he could make at farming from $800 to $1,000 a year, if perfectly able-bodied. He has, however, no property ofhis own(flDd works only for his father, as a farmhand. The wages of an able hand at Nicollet, he testified, are about $208 a year, besides board. In the case of The Juniata, 93 U. S. 337; The City oj Panama, 101 U. S. 453; and of The Washington, 2 Ben. 227, 9 Wall. 513, the injuries, .the pain, and the final disability were much more severe. In this case, the disability is but partial, and its actual degree' not very satisfactorily established. The limb is a little shorter; but that alone would not affect its use. The curvature below the knee is a little increased, and the foot is a little incurved. 1.'he libelant's general health is good. His expert, judging from the general pain in the knee, and a little irregularity in the joining of the fracture, which formed a slight displacement in the axis of support, regarded the pain in the knee as likely to increase, rather than diminish. There is no evidence, however, to show any increase of pain <luring the past year; nor is there any circumstantial evidence to corroborate the libelant's testimony as to any considerable pain still suffered from the injury. On the whole, the case more nearly approaches that of The Grecian Monarch, 32 Rep. 635, though attended by some circumstances which would entitle the libelant here to a larger award. On the other hand, the libelant's delay in prosecuting his suit for 16 months after his substantial recovery, the ship's loss of testimony in the mean time, the somewhat speculative character of the suit, to be inferred from its prosecution in forma pauperis, notwithstanding the comfortable drcumstances of the libelant's father, cannot be wholly ignored. I al. low him $1,600 and costs.
M'KEEN V. IVEB.
v. IVES et al.
REMOVAL OF CAUSES-TIME OF MOTION.
Plaintiff filed his complaint in the state court at the January term. 1888, and by the summons fixed March 5th, the first day of the next term, as the day for defendant's appearance, but without indorsement thereof on the complaint, as required by Rev. St. Ind. 1881, 1'\ 401. Held, that the docketing of the cause for March 5th was irregular, as under section 400 the cause could not be called for issue until the second day of the term, and such though under a rule of court, could not have the effect of a rule to answer, so as to preclude defendant's motion to remove to the federal court at a subsequent day of the same term.
On Motion to Remove. The superior court of Vigo county having overruled the application of the defendant the Cinciunati, Hamilton & Dayton Railway Company to remove the cause to thit:l court, the petitioner procured and filed here a transcript of the record, and the motion of the plaintiff is to strike the same from the files.· It appears from the transcript that the original complaint wa9 filed in the superior court on the 2d day of January, 1888, in term-time, and the summons was issued, served, and returned on. the same day. The summons in terms required the defendants "to appear in the superior court of Vigo county on the 5th day of March, 1888, being at the March term thereof, to answer," etc. March 5th was in fact Monday, the first day of the term of said court. It does not appear from the transcript that the complainant had, in accordance with section 516, Rev. St. Ind. 1881, "fixed the day during suoh term by indorsement on the complaint * * * on which the defendant [should] a,ppear." Ata later day of the January term, there having been no appearance by the delendants, the cause was ordered "continued until the next term." On the first day of the next term, that is to say, on March 5th, the complainant obtained leave of the court to file, and filed, a "supplemental complaint,"and no further step was taken in the cause until "the 28th day of March, the same being at the March term of said court," when the defendant the Cincinnati, Hamilton & Dayton' Railroad Company presented to the court its petition and bond for the removal of the cause to this court, showing that the petitioner was and always had been a corporation existing under and by. virtue of the laws ')f Ohio; that ,Ives, its co-defendant; was a citizen of New York, and McKeen, the plaintiff, a citizen of Indiana; that the matter in dispute exceeded $2,000, exclusive of interest and costs; that the petitioner had not been required, by the laws of the state of Indiana or rule of the court, to answer or plead to the complaint; and that "the real and substantial controversy in the said suit is between said McKeen, plaintiff, and the petitioner, and the said I ves has no actual or substantial interest therein." At a later day of the term the plaintiff filed written objections to the removal; that is tosay: Flirst, because the petition wasnot filed v.o5F.no.11-51