McCarthy v. Lehigh Valley Transportation Co. , 48 Minn. 533 ( 1892 )

Dickinson, J.

This action is for the recovery of damages for injuries sustained by reason of the alleged negligence of the defendant while the plaintiff was engaged in its service. When the evi. dence was closed, the court directed a. verdict for the defendant, both because it was considered that the case did not show negligence on the part of the defendant, and that it did show that by his own negligence the plaintiff had contributed to bring about the injury. Our review of the case on this appeal has led to the conclusion that for the latter of those two reasons the direction of the court was right, and it becomes unnecessary to pass upon the other question. The facts will therefore be stated only so far as may be necessary to the understanding of what will be said as respects the subject of the plaintiff’s negligence.

A large steamboat of the defendant was lying at the port of Gladstone, in the state of Michigan, taking in a cargo, consisting, in part, of flour in barrels. The plaintiff, with some other laborers, had been employed only a few hours before the accident to assist in this work. The flour was being lowered from the main deck of the steamer, through a hatchway about eight feet square, into the hold, by means of ropes, which were provided with hooks, to attach to the chimes of the barrels, and which ropes ran through blocks attached to timbers, fitted into the hatchway in the upper , deck, immediately above the hatchway in the main deck, above referred to. The ropes running through such blocks were connected with a winch on the main deck. The barrels descended into the hold by their own weight; the speed being controlled by means of a brake attached to the winch, which was operated by one of the crew. One of these timbers and blocks was near each side of the upper hatchway; the arrangement being such that barrels were lowered into the hold from the main deck on both sides of the lower hatchway; a barrel going down on one side, and then on the other, alternately. The plaintiff was stationed in the hold to unhook the rope from the barrels as they came down on one side only of the hatchway. The timbers across the upper hatchway, with the blocks attached to them, were placed in such position that the barrels going down into the hold would just clear the side of the lower hatchway, so that it was not necessary for the plaintiff to stand out fully under the hatchway, in the way of the descending barrels, but he might as well avail himself of the protection of the deck above his head. It appears without dispute that he was directed by the mate of the boat to “stand clear from the hatch. ” In the course of the operation of lowering barrels into the hold, a barrel to which the rope had been attached was lifted or thrown over the combing of the lower hatchway by the men working on the main deck in such a manner that it dropped a distance, variously given in the evidence, of from two inches to two feet, before it took up the slack of the rope; and, as the rope became taut, and the strain came upon the block and timber in the upper hatchway, the timber was displaced, and, with the heavy block, it fell through the between-deeks, through the lower hatchway, and into the hold, where the timber and the block struck the plaintiff, inflicting serious injury. There was testimony that he was then standing in a position fully under the open hatchway, and ‘quite away from the space under the deck; that he stepped out of the way of the barrel, which of course fell when the timber ceased to support it; but that the timber and the block struck him. This direct evidence, which was largely given by witnesses testifying in behalf of the plaintiff, was not opposed by any evidence which can be said to contradict it. It is true that while the plaintiff testified on cross-examination that he was in the middle of the hatchway, and that he probably followed the barrels to the end of it after unhooking them from the rope, he does say “Yes” in answer to the question, on redirect examination, whether he does not mean that he was at the middle of the end of the hatchway. This does not really controvert the evidence before referred to, which placed him fully under the hatchway, but near the end or side, and about where the barrels came down.

. In view of the order to stand clear of the hatchway, we think that the court did not err in his estimate of the effect of the evidence. The only reason suggested for the plaintiff being in the position above indicated, contrary to his orders, is that the hold was getting so full, the barrels being stowed so near to the hatchway, that he had not room to stand elsewhere. But the evidence is to the contrary. It is shown that the barrels were being stowed some 15 feet back from the hatchway, that there was sufficient room for the plaintiff to stand under the protection of the deck, and that there was no reason requiring him to stand where he did. This is only opposed by the testimony of the plaintiff, who does not seem to have known or to have observed how much space remained around the hatchway where cargo had not been stowed. As to this, he says he does not know. Again he estimates the distance as three or four yards. He adds: “I believe they were getting pretty close onto me. * * * The back part of the hatchway was all pretty well full. They [the men engaged in stowing away] were getting close to where I was lowering.” It is noticeable that he does not say that he had no* room to stand and work in the place assigned to him, clear of the hatchway, and he states no reason for being in the place he occupied. We think, therefore, that the case cannot be deemed to show any excuse for conduct which was in contravention of the order given to him but a few hours before, and which unnecessarily exposed him to the-injury for which he seeks to recover.

Order affirmed.

(Opinion published 51 N. W. Rep. 480.)