The Victoria

U.S. Circuit Court for the District of Massachusetts

The Victoria

13 F. 43, 1882 U.S. App. LEXIS 2612

CourtU.S. Circuit Court for the District of Massachusetts

DecidedAugust 1, 1882

StatusPublished

Cited by6 cases

This text of 13 F. 43 (The Victoria) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Victoria, 13 F. 43, 1882 U.S. App. LEXIS 2612 (circtdma 1882).

Pincite

Opinion

Lowell, C. J.

The libelant was seriously injured by falling down tbe main hatchway of the third deck of the steam-ship Victoria, on his return from supper, just after he had reached that deck by a ladder placed in a smaller hatchway or scuttle, which is alleged to have been so dangerously near the main hatch that it was negligence to leave that hatch open. Whether it is usual to close the hatches on the third deck after the day’s work is done is a disputed question in the ease. The preponderance of the evidence is that it is not usual; and see Dwyer v. Nat. Steamship Co. 17 Blatchf. 472. The libelant had been working during the day not far from the open main hatch, and had been up and down this ladder once or twice, and had no reason to suppose that the hatch had been closed. If it was negligently left open, the negligence was that of the stevedore having [44]*44charge of discharging and loading the ship, which cannot be attributed to the owners. Dwyer v. Nat. Steam-ship Co. supra; The Germania, 9 Ben. 356.

The actual negligence, however, was in removing a lamp which had hung near the foot of the ladder, and not replacing it. Bose testifies that he came down through the scuttle a short time before the plaintiff came back, found that the lamp had gone out, relighted it, and carried it aft. If that lamp had remained where it had been during the day, and had been lighted, it seems impossible that the accident should have happened; for the main hatch was forward of the scuttle, and the libelant’s place of work was aft of the scuttle, and it must have been through some confusion caused by the want of light that he took the direction he did. This fault was committed by a fellow-workman who was employed on the very same job with the libelant, and the law is too well settled tó be changed, excepting by congress or the supreme court, that the common employer is not liable for an injury occurring to a workman under such circumstances.

For these reasons I have felt bound to affirm the decree below. In consideration of the great hardship to the libelant, I suppose costs would not be asked against him from a court of admiralty.

Decree affirmed, without costs.

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Lowell, C. J.

The libelant was seriously injured by falling down tbe main hatchway of the third deck of the steam-ship Victoria, on his return from supper, just after he had reached that deck by a ladder placed in a smaller hatchway or scuttle, which is alleged to have been so dangerously near the main hatch that it was negligence to leave that hatch open. Whether it is usual to close the hatches on the third deck after the day’s work is done is a disputed question in the ease. The preponderance of the evidence is that it is not usual; and see Dwyer v. Nat. Steamship Co. 17 Blatchf. 472. The libelant had been working during the day not far from the open main hatch, and had been up and down this ladder once or twice, and had no reason to suppose that the hatch had been closed. If it was negligently left open, the negligence was that of the stevedore having [44]*44charge of discharging and loading the ship, which cannot be attributed to the owners. Dwyer v. Nat. Steam-ship Co. supra; The Germania, 9 Ben. 356.

The actual negligence, however, was in removing a lamp which had hung near the foot of the ladder, and not replacing it. Bose testifies that he came down through the scuttle a short time before the plaintiff came back, found that the lamp had gone out, relighted it, and carried it aft. If that lamp had remained where it had been during the day, and had been lighted, it seems impossible that the accident should have happened; for the main hatch was forward of the scuttle, and the libelant’s place of work was aft of the scuttle, and it must have been through some confusion caused by the want of light that he took the direction he did. This fault was committed by a fellow-workman who was employed on the very same job with the libelant, and the law is too well settled tó be changed, excepting by congress or the supreme court, that the common employer is not liable for an injury occurring to a workman under such circumstances.

For these reasons I have felt bound to affirm the decree below. In consideration of the great hardship to the libelant, I suppose costs would not be asked against him from a court of admiralty.

Decree affirmed, without costs.

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13 F. 43, 1882 U.S. App. LEXIS 2612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-victoria-circtdma-1882.

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