Willis v. Aspotogan

49 F. 163, 1892 U.S. Dist. LEXIS 21

• Court: District Court, E.D. Pennsylvania
• Decided: January 5, 1892
• Status: Published

Opinion

Butler, District Judge.

The libelant, a seaman on board the bark Aspotogan, was injured while assisting to unload a cargo of lumber, which she carried to Bio de Janeiro, and sued for damages — charging his injury to careless and wrongful conduct of the mate, as follows:

“ Libelant was working between decks, and was running the planks out of tho bark through the port bow, onto lighters. A large tier of planks was piled up along the port side of the vessel as they had been loaded, and were held in position by cleats of wood which had been driven in between the planks and the beams of the vessel. The mate of the vessel was superintending the removal, and while libelant was busily engaged in counting his planks, the mate, without a word of warning, knocked away one of the cleats which so held up the said tier of planks, and in consequence of the loss of this support, tlie tier of planks fell down and buried the libelant under their weight, in consequence of which his left leg was broken and other serious injury sustained, * * * without any negligence on his part whatever.”

The answer denies the imputed negligence and all liability for the injury. The mate was superintending and assisting; and several other were engaged in the work of removing the lumber, as tho libelant was. He alone, however, was injured. The master was on board. The testimony of the libelant, upon which alone his case rests, is contradicted by that produced by the respondent. A careful examination has satisfied me that the charge of' negligence is not sustained. What tho mate did was proper and usual under the circumstances. It was necessary to remove the cleats and it was customary to do it as he did. The testimony seems to leave no room for doubt that he gave ample and repeated warning that he was a,bout to do it, which the other workmen heard and obeyed. The mate was justified in believing the libelant would also heed it. Why he did not is explained by his statement immediately after the occurrence; he thought himself safe where he was. The testimony justifies a conclusion that his injury resulted entirely from his own want of care. It is unnecessary therefore to consider the legal question raised — that the vessel was not responsible for the mate’s negligence, if he was negligent. The libel must be dismissed.