The Nikolai II , 102 F. 174 ( 1900 )

TOITLMTN, District Judge,

after stating the case, delivered the following opinion:

The libelant was lawfully upon the ship, and was injured by falling into the hold. The question is, did his injuries result from the negligent failure of the officers of the ship to perform a duty necessary for his safety? There must be reasonable evidence of negligence on tlieir inurt The Germania, Fed. Cas. No. 5,360; The Gladiolus (C. C.) 22 Fed. 454; The Jersey City (D. C.) 46 Fed. 134; The Louisiana, 21 C. C. A. 60, 74 Fed. 748; The Max Morris (D. C.) 24 Fed. 860; The Saratoga, 36 C. C. A. 208, 94 Fed. 221; The Max Morris, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586.

It is not claimed by the libelant that the master and crew were guilty of any negligent act of commission which caused the injury complained of, but they are charged with an act of omission in that they omitted to keep the passway between the foot of the ladder leading to the between-decks and the wing decking between-decks safe and properly lighted. The evidence shows that the ladder, the passway, and the decking between-decks was such as is customarily found in vessels of the kind, build, and trade of this vessel. There was nothing'unusual in their construction, and no special defect in them. The passway in question was commonly used, and shown by the proof to be reasonably safe. It was used by libelant’s fellow stevedores on the same evening and night of his misfortune, and by some of them after dark, and but a short time before bis accident.

On the question whether the between-decks were properly lighted there is some conflict of evidence. There is none, however, that they were lighted, except so far as libelant’s testimony is concerned, lie says it ivas perfectly dark. The evidence is not entirely harmonious as to the extent of the lighting; but from it we can have no doubt that Carr and Mitchell, the foremen or “boss” stevedores, were in their cots or hammocks some 10 or 15 feet from 'die foot of the ladder, aud that they, or at least one of them, wats at the time of the accident reading a book or newspaper. Some of the witnesses say there ivas but one lamp burning; others, dial, there were two. Suffice it to say there was sufficient light to see to read by. As to this there can be no serious dispute. Borne of the stevedore gang came down between-decks after dark, and safely found their hammocks. One of them says his hammock ivas 40 or 50 feet from the ladder. Witness Jordan testifies that he saw libelant descend the ladder, and saw him as he reached the foot of it, but that before he saw who it was and could call to him he had fallen into the hold below. Jordan was some 15 or 20 feet away, laying in his hammock. He had during the evening swung libelant’s hammock for him, hut libelant had not been down between-decks to learn its location. One of the libelant’s witnesses testifies that libelant fell while descending the ladder, and before reaching its foot. But he must be mistaken as to this. He is entirely uncorroborated.

When libelant descended the ladder, if it was as dark below as he represents it to bare been, — so dark that be could not see at tbe foot of tbe ladder what tbe passway was and in what direction to go, so dark that be “could not see where to walk,” — it seems to me that ordinary prudence and precaution required bim to return up tbe ladder for a light, or to endeavor to get one, or while on tbe ladder to have called to bis companion, Jordan, for a light, and particularly as be did not know where bis hammock was swung, and bad to depend on Jordan for information as to it. Tbe statements of libelant, and of tbe witnesses who testify that it was perfectly dark, or that tbe lamps were turned down so low that a person could not see to walk tbe beam used as tbe passway between tbe foot of tbe ladder and tbe wing decking, are not only in conflict w'ith much direct testimony on tbe subject, but are inconsistent with the circumstances shown by tbe testimony in that connection. Hence I am bound to believe that there was sufficient light to enable a person, exercising ordinary care, to have walked tbe passway to tbe wing decking. It is true that tbe ship did not furnish this light; but my opinion is that, under tbe circumstances of tbe case, it was not its duty to do so. It appears that it was customary for tbe stevedores to furnish their own lights, and that in this particular instance a number of them did so, as usual. Tbe Aucbenarden (D. C.) 100 Fed. 895. The unfortunate accident by which tbe libelant was injured was not attributable to any negligence or omission of duty of the master or crew of tbe vessel. The libel is therefore dismissed.