HAMBURG-AMERICAN STEAM PACKET CO. v. BAKER, 185 F. 70

PRITCHARD, Circuit Judge (after stating the facts as above). The learned judge who heard this case below filed an opinion in which he disposed of the questions' involved therein in a very clear and concise manner. The opinion in question is as follows : “This is one of those unfortunate accidents to stevedores which are far too common. Stevedores work under conditions of a good deal of danger at the best.

They work at night as well as In the daytime; they work rapidly and with energy, and not always with the greatest care to their own safety, and it sometimes happens that they are injured without the fault of anybody hut themselves. But, if it is shown that through the negligence of the shipowners that they are given an unsafe place in which to work, and then the injury happens on that account, and without fault on their part, then the ship should be held liable. “The sol§ question in this case is whether the injury is attributable to the fault of the ship. There is not a great deal of conflict in the testimony.

The testimony is very clear that the crossbeam on which the fore and after rested was sprung out of its true line — that it was sprung after — the result naturally being to shorten the space on which the fore and after rested and rendered it likely to fall. That was a very essential defect. The fore and afters must have sufficient resting place to make them secure.

The consequence was that when the libelant, standing on one of the hatch covers, which rested on these fore and afters, exerted himself by stooping over to reach one of the hatch covers with a hook and pulled upon it to raise it, the whole thing came down, and he and the hatch cover and the fore and after were precipitated into the hold about 35 feet below. “The proof is very strong that the aft crossbeam was sprung and that increased the distance to be reached by these fore and afters which sustained •the

section of the hatch cover on which the man was standing. It seems to he proven, not by mere preponderance of. evidence, but to a demonstration that the crossbeam was sprung aft. It is'proven that the next day. when they attempted to put in the fore and afters of the next section, the crossbeam was so much sprung that they could not get them in. They could only do it by pounding with the hatch covers and forcing the fore and afters into place. This had the effect of driving the bend in the cross

section into place and correcting the fault and that is probably the way it had been done when the ship came into port. When the fore and afters of the aft

section were forced into place, they pushed the "bend in the crossbeam forward and straightened it, and then there was resting place enough for the fore and after of the next

section to hold on. . “That, it seems to me was a very unsafe condition. It is well known that in order to handle the hatch covers the men must go upon the hatch, and therefore they must be made reasonably safe to bear that weight and to hold their position under that strain, and if they are not and that is a permanent condition of the hatch of the ship, it is the fault of the ship. In this ease it has led to a disastrous result. *‘It is said that there were holts to hold these fore and afters in place.

That, in itself, shows that there was some special occasion for bolts, and a natural conclusion is that they were put in because of this bend in the after crossbeam. Now, without a special warning and a very special warning, it would not be supposed by the stevedores that while in a ]Jort these fore and afters would not be sufficient to bear a man’s weight. At sea where there is a, great strain upon the working of the ship, then they might have needed those bolts as a contrivance to help qut the strain.

Could it Be anticipated that the hatch covers were so weakly supported that they would give way under the ordinary weight of a man? The fact that the bolts were used, I think, tends to show that there was a weakness intended to be overcome by this very unusual device. It could not be presupposed that these fore and afters should be bolted to make them safe to stand on. “I find that the libelant has made out a case which entitles him to damages. The «mount of damages is a somewhat difficult question.

This injured man is US years of age; he certainly had at least 10 years’ expectancy of strength and rigor. lie was a powerful man, had been foreman of tlie gang, and was a good workman, and he is entirely disabled for Ufe. Vertebra; in Ms back are broken. lie has suffered a great deal and will continue to suffer. and the physicians say that his disability Is probably of a progressive character.

I do not think I can allow him less than ¡54.500 considering the character of the injury and the permanent disability which he has suffered.” After a careful consideration of the evidence in this cause, we find ourselves in entire accord with tlie findings of fact and conclusions of law announced by the court below, and we adopt tlie same as tlie opinion of this court. However, we deem it proper, in this connection, to say that certain depositions have been taken in this court on behalf of the respondent, and that it is insisted that this evidence should turn the scale in favor of the respondent.

The libelant objects to the admissibility of this evidence. We do not find it necessary to pass upon these objections because in our opinion, even if that testimony be considered, we would still agree with the conclusions of the court below. In so saying- we are not,.however, to be taken as even impliedly sanctioning the taking of additional testimony in this court in the way and under the circumstances disclosed by this record. For the reasons stated, tlie decree of the lower court is affirmed