Young v. New Orleans Coal & Bisso Towboat Co. , 8 F.2d 310 ( 1925 )

BURNS, District Judge.

Libelant, Josephine Young, claims damages of tbe respondent, New Orleans Coal & Bisso Towboat Company, for tbe death of her son, Ernest Young, who was drowned while in tbe employ of respondent as a coal wheeler by falling from on board respondent’s collier barge Uncle Bill and drowning in tbe Mississippi river, at or about 5 o’clock a. m., or “daybreak,” on December 17, 1924. Tbe material charges of tbe libel are that:

(1) “Tbe long hours be was forced to work necessitating fatigue, and in tbe early hours of tbe morning, because of tbe fatigue and physical strain be was undergoing, he was in no condition to help himself or secure succor when be met bis death by falling into tbe Mississippi river and losing bis life by drowning.”

(2) “That tbe contributing cause of her son’s death was tbe long hours be was forced to work and tbe improper precaution taken by defendant and -her son’s employers to protect her son in tbe discharge of bis employment and to make tbe place be was working on safe.”

(3) “That tbe death of her son was due to tbe negligence of defendant having worked her decedent son to a point beyond endurance, and which was tbe proximate contributing cause of her son’s death.”

Respondent in effect pleaded a general denial and averred that tbe collier Uncle Bill was and bad been coaling a ship, on which the deceased worked trimming tbe coal in tbe bunkers; that be bad, with others, knocked off at or about 5 a. m., left tbe ship, and gone on board the collier where—

(1) “He was negligently and carelessly engaged in a sitting posture in answering a call of nature, when respondent is informed and believes that tbe said Ernest Young fell asleep, fell overboard, and was drowned.”

(2) “That tbe said Ernest Young was in good health and strong, and came to bis death by bis own recklessness, gross carelessness, and negligence, and respondent was guilty of no negligence, or lack of care, or neglect, and bad absolutely nothing to do with tbe death of Ernest Young.”

Tbe libel is not sustained by tbe evidence. In no material particular is there any evidenee of negligence on the part of respondent. The evidence by a clear preponderance shows that the decedent and. many of his colleagues had been employed by respondents for long periods of time, some of them for ten or more years, the decedent himself for some 3 or more years; that the hours of duty were determined entirely by the number of vessels in port, which made the employment of the trimmers irregular and their earnings precarious; that they were paid extra for overtime and night duty; that the hours of service were largely determined by the men themselves, who were paid daily at hourly rates. Even were this not so, the fact that decedent had been on a long tour of duty for some 20 hours could at best be construed as probably a remote, but not the proximate, cause of the accident, if a causal connection could be traced in the evidence to sustain the charge in the libel.

The second contention of libelant is to the effect that the negligence consisted in respondent’s failure to make “the place he [the deceased] was working on safe.” This vague statement is the more difficult to understand, in the light of the evidence, which conclusively shows that all of decedent’s work was on board the vessel being coaled, and not on defendant’s collier barge at all; this barge being decked over all flush with the sides, equipped with housing for tools and machinery, and a room used by the coal wheelers or trimmers as a lavatory and dressing room, before going to and on returning from duty trimming bunkers aboard the ship receiving coals.

The evidence having disclosed that decedent had squatted over the collier’s side, and had fallen thence to the water, unaccountably so far as the evidence shows, libelant’s proctor assumes in argument to contend that the absence of a toilet stool on the collier barge brings the case within the rule that a master is bound to furnish a servant with a safe place to work, citing various decisions wherein this general rule is applied. This contention is not sustained by either the pleadings or the evidence here. Marine equipment designed for sneh special port seiwiee as colliers, tipplers, and other such craft, are not to be confused with ferries and vessels engaged in passenger and other public service, regulated by the shipping and navigation laws. Moreover, the testimony of one of the witnesses was that a heaving line was at hand aboard the collier barge, and he was ready to use it, and “was aiming to try to catch him, but could not see him.” This was a 'device “reasonably fit and accessible to effect a rescue,” within the rule prescribed in Norfolk Sou. R. Co. v. Foreman, 244 F. 353, 156 C. C. A. 639, if it were necessary to consider its application, here.

There will be a decree in favor of defendant, dismissing libelant’s suit, at her cost.