casebody">

THE GLADESTRY.

(Circuit Court of Appeals, Second Circuit.

February 23, 1904.)

No. 167.

1. Federal Courts — Appear—Findings oe Triar Judge — Concrusiveness.

Where an action was tided before the District Judge, who saw all the witnesses, Ms findings-of fact will be followed on appeal.

2. Master axd Servant — Servants oi? Separate Masters in Same Work— Ferrotv Servants.

A firm of stevedores contracted to discharge and load a vessel, being required to furnish all labor and appliances, except that the ship was to furnish winches and winelunon. Plaintiff, a servant of the stevedores, was injured by the negligence of the winclunan in failing to obey an order to reverse (he winch, field, that the winclunan, not being under the control of the stevedores, was not plaintiff's’fellow servant, so as to preclude plaintiff from recovering for his negligence.

Appeal from the District Court of the United States for the Eastern District of New York.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, in favor of libelant for damages from personal injuries. 124 Fed. 112. The libelant was engaged as a stevedore, working in the employ of the firm of Wilson & Irvine, in discharging a cargo of logs from hatch No. 4 of the steamship G-ladestry. The winch which was used in connection with the work was furnished by the ship and run by one of her •crew. It was charged that the winclunan was negligent in that, when the gangwayman sang, out to him to “come back” (i. e., to reverse the winch), he went ahead with it, whereby the libelant’s finger was crushed.

J. Parker Kirlin, for appellant.

Fredk. B. Baiiey, for'appellee.

Before EACOMBE, TOWNSEND, and COXE, Circuit Judges.

EACOMBE, Circuit Judge.

The libelant, the gangwayman, and a fellow workman all testified to the winchman’s failure to obey the order given. The latter testifies that he conformed to whatever order he received. The cause was tried before the District Judge, who saw all the witnesses, and his findings of fact will be followed here.

It is contended that the winchman was a fellow servant .with the libelant. There was a similar contention in The S. S. Slingsby, 120 Fed. 748, 57 C. C. A. 52, where the point was quite fully discussed, and the conclusion reached that upon the facts of that case the winch-man did not become pro hac vice the servant of the firm of stevedores. The important piece of evidence in that case, as will be seen from the opinion, was the contract under which the work was being done. By its terms the stevedores agreed to “discharge and load/’ and the owners of the steamship agreed to “furnish winches and drivers [i. e., wiuchmen].” The contract in the case at bar is to the same effect; *592its language is, “the ship to furnish steam winchmen, falls and slings.” There has been an effort to differentiate the case at bar by the testimony of one of the firm of stevedores as to what he understood he had a right to do under this contract, and as to what he had been allowed to do under similar contracts with other parties, but it is unimportant. Under-the contract the ship retained the power to select and remove winchmen, and the case cannot be distinguished from that of The Slingsby.

The decree is affirmed, with interest and costs.

Citation profile

Relationships

How this case has been treated — in progress