The Serapis. Smith v. The Serapis, 51 F. 91

Bond, Circuit Judge. It appears from the record in this case that some time about the 1st of January, 1891, the steamship Serapis arrived at the port of Baltimore with a cargo of iron ore. Upon her arrival she made a contract with a head stevedore, who had a gang of other stevedores in his employ, experienced in the business, to unload the ship. The Serapis ranked A 1 at Lloyd’s, and was fitted up with 'two winches in the usual position on the ship, which had been on her for six years, and had been made by the first machinists in Liverpool.

The record shows that these winches were in perfect order, and no objection was made to them by the head stevedore, with whom the contract to unload the vessel was made. The libelant, Smith, was set to work at first to manage the winch, while the cargo was taken out of a forward hatch. Of course his face was turned towards the hatch in front of him, and he could see from his position whether it was time to wind up the winch or let it go,—to hoist or lower the buckets, into which the ore was placed. He worked the winch for four or five hours in the nighttime while the forward hold was being emptied of cargo.

A fellow stevedore -was placed in the proper position at the hatch to let him know w'hen he was to lower or hoist. This he did vocally or by a wave of the hand. The next morning Smith was put to use the same winch, but the hatch out of which cargo was to be taken was behind him. A stevedore was placed there to give him notice what to do with the winch, but Smith, unmindful of this fact, turned his head behind him to see for himself when and how to move the winch.

By so doing he lost sight of the wheel by which steam -was turned on or off, and placed his hand on the cogwheels instead of the wheel, and lost several of his fingers. If the libelant felt called upon to look behind him to watch the hatchway where the stevedore was placed to give him notice what to do, because the stevedore so stationed did not do his duty, and call ciut to him what to do, this was negligence on the part of a fellow employe, with whom the ship had nothing to do, for he had been employed by the head stevedore, as Smith had been, and not by the ship.

The libelant contends that although he may have been negligent in turning his head to watch the hatch behind him, yet, if the winch had had its cogwheels covered, he would not have been injured, notwithstanding his negligence. The winch at which libelant was working had, as the record shows, been on the Serapis for six years, and cargo after cargo had during that time been discharged by its use. There is no evidence whatever that it was not in perfect order for that style of machine.

The libelant knew all about it, for he had worked at it the night before for four or five hours, and an hour and a half on the morning of the accident; It was not peculiarly dangerous in its construction, for the valve wheel was even further away from the cogwheels than usual, though the evidence here somewhat conflicts. The captain, however, states that he measured it, and its distance from the cogwheels was 12 inches.

The libelant slates that he told the mate that there ought to be something over the cogwheels, hut he said: “You be a little careful, and it will be all right.” .Now, the question is whether the owners of the steamship Serapis can be called negligent because they had on board the steamer a winch which had been there for six years, in continual use, was in perfect order, hut required more care on the part of the person who'worked it than some more modern machines of the kind.

And this, too, when the machine was well known to the employe, and that it required somewhat more attention on his part than other machines fitted for similar use. We are of opinion that where a workman is employed to do certain work with a machine which he fully understands, though it may not be of the newest pattern, but nevertheless is in perfect order of its kind, and may require more care than newer patterns, he takes the risk of all accidents which may befall him in its use. And if, as is the fact in this case, he did not exercise the care required, he must suffer the consequence of his negligence.

This libelant’s misfortune has our deepest sympathy, but to do injustice through sympathy for the injured is to do away with law, and make recovery for loss dependent on the tenderness or want of it in the feelings of the court. Wo think the decree of the district court in this case should be reversed; and it is so ordered.