THBWILLIAMBRAN1l'OOT tI. HAMILTOIfe
HAMILTON tI. ·THgWILLIAMBRANFOOT. Court
OJ AppealB, Fourth. Circuit. . October U, 1892.)
A ship 1s liable in dame.gesto one of a' stevedore's who is injUred while un· cargo by the unexpected falling ofa stanchlOnj because of defects in its fas,tentugs, not observe.d .by hi.mand not apparent W the but which a proper b1.sp8ctioll by the ship's otlloerll would have disclosed. 48 Fea. Rep. 914, atIlrmed. cf the accident under slichcil'cumstances casts upon the ship the burden()f showing reasonable care in maintaining the in a safe condition.
8. 8AK&.-BURllBN OP PRooP-Rlls IPsA LOQUITUR.
S. DAMAGBs-ADEQUAOY-PBRSONAL INJURIES.
'A IJteVedore's laborer received a comminuted fracture of the bones of his leg, and had the leg amputated below the knee, being treated in a free hospital. He was betwee1180 and 35 years old, and earned '1.25 per day, or $375 a year. Held. that an award,of f2,286 wasil. su1Jlcient compensation for his pain and su1!ering and the otb,is capacity for work. 48 Fed. Rep. 914, atIlrmed. " CoSTS-OOJi1tENBATION O. EXPBRTS. , The compensation of expertli oalled by a party in his own behaltcannot be taxed the losing Party\ u!1Cler Rev. at. 15 823, 983, either as costs or extra allowall<l8J.'.. ' L BAKa--eoPYING BTBNOGBAl'BlIlB'S NOTBs.: Honeypatd by a party tor a copy of the oftlc1a!. stenographer's notes tor hia own oonvenfence is not
.. 8.ur_DBP08ITIONS-TRAVBLING EXPBNIlBS.
The expenses of a journey,to a distant city to attend the taking of a deposition cannot be taxed as costs on the ground that the notice was so short as to be insutll· oient for employing and instructing counselthere, since, if the, notice was unreasonable, counsel could have had it extended, or perhaps have .uppressed the deposition.
Appeals from,the District Court of the United States for the District of South , In Libel, by .John Hamilton again,n the British steamship William Branfoot to recover damages for personal injuries. Decree for libelant in thesu tn of 82,286 and costs. 48 Fed. Rep. 914. appeal. ' Both , The libel averred that$Lmilton was on board the steamship then lying afloat the navigable ,waters in the port of William Charleston, in unloading &,cargo of pyrites, and injured by the sudden fall of an iron stanchion, py reason of its defective, unsafe, and insecure condition, through the negligence of the steamship, her owners and officers, contrary to their dutyi,n that behalf. The answer denied that the stanchion suddenly fell, or was either unsafe, defective, or insecure, and alleged that it "was in all respects and, purpoS!ls, as far as could be ascertained by external examination, strong, safe, secure, and properly and safely riveted and fastened," and charged that the injuries were the proximate and immediate result of the negligence of Hamilton, his coem-
THE WILT_lAM BRANFOOT.
ployes, and the ste·vedore by whom they and he we're en1ployed, in so iron tubs carelessly managing the hoisting of the cargo as to used for that purpose so to strike against the stanchion as to finally wrench it from its fastenings, and cause it to fall. Evidence having been taken, and hearing had, a decree for libelant was rendered for $2,286 damages and costs. The opinion of the district judge will be found in 48 Fed. Rep. 914. Exceptions to the taxation of costs were taken by libelant, and overruled. R. G. Rhett, for the William Branfoot. Claudiua B. Northrop, for Hamilton. Before FULLER, Circuit Justice, BOND, Circuit Judge, and HUGHES, District Judge. FULT,ER, Circuit Justice, (after stating the facts.) Treating the opinion of the learned district judge as if it formally presented findings of fact and conclusions of law separately stated, claimant assigns upon his appeal a number of alleged errors in respect of such findings and conclusions, and these have been fully argued by counsel. The real question is whether, upon the whole case, the district court erred in rendering the decree complained ofjbut in determining that question the opinion of the court may be considered, by waynf convenience, in the light of claimant's objections, as these embody the grounds relied on as requiring a reversal, and involve all examination of the entire record. The district judge said: "Libelant was one of a stevedore's gang employed in discharging pyrites from the. British steamship William Branfoot. While he and others were working in the lower hold, an iron stanchion supporting the between decks fell and broke his leg. Amputation became necessary. The leg was cut off about six inches below the knee. The stanchion was on the starboard side of the main hatchway, midway. It was eighteen feet high, and weighed six hundred and sixty pounds. It rested on an iron tank at the bottom of the hold, and had two t1anges at its lower end, through each of which was an iron bolt. riveting it to the tank, The top of the stanchion was riveted to the iron beam upon which the bl'tween decks rested. This was by a 80rt of flap, pierced with two holes for rivets. After the stanchion had fallen. its upper end was examined. 'fhe concurrence of testimony is that one of the rivets originally in this part of the stanchion had broken off and disappeared. At all events,"it was not in place at the time of the accident. The other was worn,-presented the appearance of an old break, which ,extended, some say one half, others two thirds, through the rivet. There is great divergence of testimony as to the bolts at the base of the stanchion. Libelant's witnesses say that they exhibited old breaks. Those for claimant say that one exhibited a fresh break throughout. The other may have been broken in part. 'fhe stanchion fell without warning,-unexpectedly." In our judgment the record entirely bears out the correctness of the foregoing statement, and it may be added in this connection that there was also evidence tending to show the working of the ship on the bolt that remained at the top, as well as that it had an old break in itj that the two bolts at the bottom of the stanchion had been broken for more than a month, or long before the vessel commenced her voyage; that
stanchions frequently required repairs, being injured by the cargoes; and that it further appeared that a board had been lashed ,to the stanchion about midway in its height, and to a stationary iron ladder leading into the hold, manifestly before the pyrites were loaded, thereby steadying the eitanchion, at least until the cargo was withdrawn. The district cotlr'twas justified in concluding thut"The libelant, lawfully at work in the hold of this vessel, was injured by the unexpected fall of the stanchion; that it fell because of defective fastenings, certainly at its upper end, probably at its base also; that these fastenings had become worn and broken from wear and tear. and were possibly originally, impElrfect." The cpurt further said: "Tbese defects were not visible except in one respect,-the absence of one upper rivet. '" '" '" Libelant has proved the falling ofa stanchion of the cause of injury to him, the insecurity of Borne of its fastenings, aqd that this insecurity was not immediately perceptible. '" '" '" There is of any inspection of the stanchion at any time by anyone. Tile 'tillite speaks of a cursor,}" eXqmination made by him at some undefined time. :':fhis cannot be called an inspection. It is very clear that neither the master 'nor the mate had any suspicion that one of the ri vets on the upper end of the stanchion had disappeared. There is no evidence whatever as to what care was exercised. if any cal'e was exercised at all." Here again we concur with the Views of the district judge thus expressed. There is ll()' basis for the theory that Hamilton voluntarily assumed the risk of danger from an insecurity known to him. nor, on the other hand, is the position sustained by the evidence that that insecurity was unknown to libelee, or such ail should not reasonably have been withinhia knowledge. The stanchion was one of some ten or twelve. The mate, in answer to the question whether he had ever made an examination of the top part of this stanchion, tE;istified: "1 never made an examination of the tops of the stanchions particularly. When I :have been down in the holds, seeing and getting the holds ready for cargo, everythinK seemed to be all right then. They are seventeen or eighteen feet thetloor to the top. Question. So your examination consisted in standing at the bottom of the stanchion. and looking up casually? Answer. Yes.Q. Have you examined the other stanchions in the hold? .A. Just the same way." The district court was quite right in holding that this was no proof of an inspection, and that none such was had, and we think it clear that a proper examination would not simply have disclosed the absence of one of the upper rivets, in itself a serious element of weakness, but also the fact that there were other defects which rendered the condition of the stanchion dangerous. It is true that the floor of the ship covered the flanges of the stanchion and the bolts fastening them to the tank; but the tests an inspection are not merely those of eyesight, and, although the absence of rivets at the bottom of the stanchion may have been concealed, it must be assumed .that whether the stanchion was secure or insecure could have been discovered without involving tearing up the deck to ascertain, in the fil1st instance, the exact defects which
THE WILLIAM BRANFOOT.
existed. Taking the evidence together, the reasonable inference is that not only would an inspection have disclosed the defective condition of the stanchion, but that that condition was probably known to those having the vessel in charge. If known, or if knowledge were chargeable, the duty to repair was obvious. The defense that the stanchion was wrenched from its fastenings by negligence on the part of the stevedore in handling the hoisting machinery is thus set forth in the opinion: "The discharge of cargo was by means of a patented automatic. A rope was passed over a crane some fifty feet above the vessel, to the end of which was attached, by hooks, an iron bucket, weighing about four hundred pounds. The bucket was let down into the hold; was from the hook by one man·.who had no other duty but to disengage the buckets as they came dowl,1 and to put on the hooks when they were loaded: was roned oil its wbeelsto the cargo: was loaded by the otber bands, rolled back under the batch,and attached to the hooks. Loaded, it weighed twenty-seven bundred pounds. Upon signal the steam hoisting apparatus was set in motion. The tub moved up slowly at first, then very rapidly: traversing the .up in ten seconds. The theory of the claimant is that the hooks had been to a full tub before it got under tbe hatchway, and that the hoisting ratul! was. prematurely setin motion. The heavy tub, thus dragged along the bottom of the hold, was dashed against this stanchion. tearing it froJ;ll its rivets. and !lausing it to fall. For this negligence upon the part of the gang the ship is not liable, the stevedore having been selected and engaged by charterer." But the district judge held that the positive evidence was to the effect that the tub did not strike the stanchion, and we agree with him that there was substantially no testimony that the stanchion fell because of a particular blow of the bucket. It iS,urged, however, that it does appear that it was a frequent occurrence for the tubs to strike, and that this was the cause of the insufficiency of the stanchion's supporrs. While there is some conflict upon this branch of the case, we are of opinion that the evidence falls far short of establishing, or even creating a presumption, that the defective condition of the stanchion was th\,! result of external force continuously applied in the process of ing, and that not only the stanchion did not fall from the blow of tub, but also that the defective condition of its fastenings was not attrib. utable to carelessness in handling the tubs prior to the fall. We. ceive nOJ;'eason for the exoneration of the ship, in any view which can properly be taken of the evidence in this regard. The cargo consisted of some 2,200 or 2,300 tons of pyrites in bulk, of which 200 tons werp in hold No.4, and 2,000 and upwards in holds Nos. 2 and 3; 1,000 t.r;l 1,100 tons being in hold No.2, in which this stanchion was At tha .time of the accident the discharge of the cargo was nearly completed, and the men were working upon about 100 tons remaining in this hold to be removed. We cannot resist the conviction that the fastenings of the stanchion were so insufficient that when the support afforded by the cargo was withdrawn some slight vibration,. occurring in the ordinary sequence of events, changed its center of gravity and occasion.ed its fall. Libelant occupied the position of a person invited to
come upon !,thbt:flhit> fvr the p\1rposes of business, andwa$entitled to be protected fro:Qll,mnn by the exercise of such .care aOd R!" renderthei,pr!Uni$es teasoIlaJ>ly. safe. There existed ano1;>1igl;Lti()non the part l!I\lcQ:,c!lre, and a breach of that obligation ;was clearly made out when the defective condition of the stanchion, as the cause of,tbe,aeeldent, wasshownj and tqe surrounding circum,stances, as disclosed 1 justified the either that that condition"was, known or might have been ascertained by the exercise of due care. It is conteLlded, however, ,that whether the whole case showed the breach of 8 legal duty on the part of libelee was a question not considered by the district judge, <because it is said that he was controlled by an the, doctrine of res ipsa loquitur. 'lfthis Were so, itrilight ?vei'<;ome theW¢ight which is usually conceded to the judgmint of the l?wer questions of however,!to which we have not adverted. Among other things,tll,e learned districtjudge 6bserved: "Lib,elant balJproved the falling ONI stanchion of the vessel, (the cause of itl'jUry to him, )t116 itlseeurity of some of its fastenings. and that this insecurity'was not immediately perceptible. 'Does ,this require respondents to prove care on their patt? 'When an unusual and unexpected alJoidenthappens. aildthething the accldEmt is in one's exclusive posses8ion, or, control, the accident'speaks for itself, is itself a witness,f·es ipsa loqultUf'," and, in a suit by any onebaving an action therefor, the fact of the accident puts on the defendant the duty of showing that it was not occa. sio.ned by negligence on his part. " i ' ., A large number of cases in· which that doctrine was expounded and applied were then cited, but it was said that the case of libelee "rests on the theory that the blow of the bucket caused the fall of the stanchiQIl i" and the court proceeded to;comment on the absence of any inspection, and the evidence indicaiinglibelee's knowledge of the defeotive condi,tiouof the smnchion,or CUlpable negligence in remaining in ignorance of it. It is plain that in his judgment a prima facie case was made out, not simply from the mere happening of the accident, but because the surrounding circumshmces raised the presumption that it happened in of a failure ofJdutyon the part of libelee. Undoubtedly there are cases where the very nature of an accident has been held of itself to supply the proof of negligeMe, but the conclusion was not rested on the mere naked, iSolated fact of injury. The presumption of hegligence was drawn from the fact of the injury, coupled with the cirCUIl1SmnCes surrounding its ihfliction,and characterizing' the nature of the occurrence as attributable to want of the requisite care, or as demanding an explanation which the defendant alo,ne could furnish. In Coasting Co.v. Tolson, 139 U. S. 552, 554, USup. Ct. Rep. 653, where the plaintiff brought'his action for injuries resulting from the striking of a steamboat against a'landing wharf, Mr. Justice GRAY, delivering the opinion of the court; said: "The wholeeffect of the instruction in question, as 'applied to the case before bhe jury, steamboat, on a calm day and In smooth water, was thrown, with. suen, foreeasainst .8 wharf, properly'built, as to tear up
some of the planks of the flooring, this would be prtmafacie evidence of negligence on the part of the defendant's making the landing, upon the whole evidence in the case this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat under control of her officers and carefully managed by them, evidence that such damage was done in this case was prima facie, and, if unexplained, sufficient, evidence of negligence on their part; and the jury might properly be so instructed." Applying here the rule thus laid down, there is no difficulty in the premises, and we are not only satisfied, upon a consideration of the whole case, with the result reached, but that the conclusions of the district judge werearrived at in like,manner, unrestricted by any 6rrO,11eou:;l application by him of the rule of presumption in question. not Upon the cross appeal libelant insists that the court erred awarding greater daruages, and ,in overruling libelant's exceptions to the taxation of costs. The learned district judge awarded a total amount of $2,286 for the pain and su.ffering undergone by lil:>elant, and the permanent diminution in his· capacity for labor. Without discussing the reasoning of the court in fixing the amount, we are of opinion that the award was just, under the circumstances, and should not be disturbed. by the cler;k in his taxation of Libelant excepted to the costs of seven items, five of them being charges for expert testimony. As to two of these, the distri,ct court sustained the clerk, upon the ground that the witnesses did not come within the designation of experts, and, as to the three, because thecompensaHon of "experts" called by the party in his Own hehalf cannot be taxed against the losing party as costs or as extra allowances and disbursements, under the statute. Rev. St. §§ 823, 983. We think the court wasright, and that, as these charges, including expenses and disbursements, were not incurred under any action of the court, but by the party in the preparation and presentatioil of his own side of the case, the items were properly disallowed. Another item was for money paid for a copy of the official stenographer's notes, obtained for libelant by his counsel. This was simply for convenience, and not a copy necessarily obtainedJl?r use on the trial. The item was properly remaining item was for the expenses of a journey to New rejected. York,for the purpose of attending the, examination of witnesses for libelee, the notice being so short that libelant insists that theFe was not sufficient time allowed within which to employ and instruct counsel in New York, and that it therefore became necessary that his proctor should be present in person. The district court correctly held that this was not a necessary disbursement, as, "if the notice given was unreasonable, counsel cou.ld ha.ve had the time extended,-perhaps have suppressed the deposition.'" . The decree should be affirmed, at the costs of lihelee, except the costs upon the cross appeal, which should be paid bylibelantj and it is 89 ordered.
THE F. S. IIALL.
0/ .Appeall. Fourth CircuUo OCtober 11, 18&2.)
On an I10ppeal in admlralty from a pro forma dlloree of the oirouit court affirming , a deoree of the distriotoourt.the circuit court of appeals will not dismiss the cauS8 merely because it was not docketed in the circuit oourt at the next term thereof ,held in the distriot, w!jen all other requiremen t8 relating to appeals to the circuit court were complied with. sohoonerR., on 'her. way to Norfolk! going under sail up Elizabeth river at night, was about balf a mile below Craney Isll1ond'light, where the ohannel is i 1,200 to 1,500 feet wide, when she sighted the ooean steamer C., ooming down about Opp(l81te the light. 'The schooner was then about the western edge of the channel, and the steamer·about Il1id-channel,the general oourse.of each vessel being about a polnt of[ the port bO.W cif the other. :But the sohooner was yawi ng with the and sometimes showEld light and sometimes the other. The steamershowea only her red light, un.tii the vessels were within 50 or 75 yards of each other, when both liKhts appeared. The lookout and master of the sohooner, both experienced seamen, beoame. alarmed,put her wheel hard astarboard, ran two or three times her length, and collide,d with the steamer, whioh meantime hEld put her helm hard . aport, and baoked her engines. HeW, that the sohooner's change of course was an error committed in extremts, and that tne steamer waBsolely liable for failing to observe the rule requirillg steamers to keep out of the way of sailing vessels. 44 Fed. Rep; 884, affirmed. ' '
.. SAKE-RULBS 0'" NAVIGATION. AND SAIti-ERROB m:mxTR'BHI9.
CUlT CoUBT' 0'" ApPEALS.
DISTRICT TO CIROunCOUR'l'-DOOltETmG CAUSE-Om· .
The rUle t1;lat a steamer J;D,ust keep outof the way of a saillng vessel req,uires, not merely that she shall pass without strikhig, but that she shall give a WIde berth, , and, lt she oomes 80 near as to cause seamen of ordinary skill and courage to believe colli,sion inevlta1:lle,she is, liable, even though the sailing veasel commits a fault under the stress of fear. 44 Fed. Rep. 884, affirmed.
, .' Appeal from the Circuit Court of the United States for the Eastern Iiistrict of Virginia. . InJ\.dm.iralty. LIbel byJ. W. Hall, owner of the schooner F. S. Ridl, against the steamer Chatham, John S. Marsh, master, for collilIion.... Decree for libefunt in the. district court, which was affirmed pro !orrrui, on appeal to the,circuit court. The muster of the Chatham apnl'lals. Motion to dismiss appeal denied, and decree affirmed on the
WilliamW. Old, for appellant. Robert M. Hughes, for appellee.
District Uponthe call ofthis case the libelant (apmoved to dismiss the appeal. His grounds are these: The cause was heard at Norfolk, and tmal decree entered December 4, 1890j notice of appeal, 10th December, 1890j appeal bond, 10th December,
" . SIMONTON,