BURRELL et al. v. FLEMING; FLEMING v. BURRELL et al., 109 F. 489

SHELBY, Circuit Judge. On the 16th of January, 1899, Charles W. Fleming fell through a small hatchway or open trimming hole in the deck of the steamer Styria, and received injuries resulting immediately in his death. The accident occurred in the city and port of Galveston, state of Texas. In Texas, when the death of a person is caused by the negligence or carelessness of an owner or charterer of a steamboat, an action lies for damages. Rev. St. Tex. 1895, art. 3017. There are similar statutes in Louisiana. Voorhies’ Civ. Code La. 1875, art. 2315. For the accident occurring in Texas an- action lies in Louisiana.

A cause of action founded upon the statute in one state, conferring the right to recover damages for injuries resulting in death, may be enforced in a court of the United States sitting in another state, when it is not inconsistent with the statutes or public policy of the state in which the action is brought. Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829.

The libel, as amended, alleged that Fleming was a landsman doing carpenter’s work on the ship, fitting her for grain; that he and his fellow workmen deposited their clothes in a compartment in the lower between-decks,. known as the “spare” or “cross” bunker, where they were expected to place them; that, when work was suspended, and he returned to get his clothes, he fell through “an open trap or small hole” in the deck, and was killed.

It was alleged that the hole was unguarded and unlighted, and that no warning of it had been given to any one, though its open and dangerous condition was fully known to the officers of the ship when she was turned over to the stevedores. The answer of the respondents asserted that the decks and hatches of the vessel wrere safe, and that Fleming lost his life by his own negligence. The steamer Styria, having arrived in Galveston loaded with a cargo of corn, was, on Friday, January 13, 1899, turned over to the stevedores to be cleaned, repaired, and loaded with grain.

The stevedores-were occupied for four days (from January i3th to the 16th, inclusive) in taking out the ballast, and cleaning and scraping the ship to fit her to receive the cargo. Fleming, however, was not employed on the ship until January 16th, the day of the accident in which he lost his life. The Styria was a three-deck vessel, the orlopdeck (or lower between-deck) having been cut away from “No. 1 hatch, back to the ladder aft of No. 2 hatch,” leaving open cargo space from the first between-deck to the bottom of the hold. A platform a few feet in width afforded a place to step off on the orlop-deck aft.

The compartment known as the “spare” or “cross” bunker was sometimes used for coal and sometimes for cargo. In the front of the bunker there were two iron doors. The bunker received light only through these doors. The evidence is conflicting as to how dark it was in the bunker. Some of the witnesses say it was dark; others, that faces could be seen and recognized in there. The evidence seems to show clearly that the floor was dark, and that the holes in it coüld not be seen. In the bunker were three open trimming holes, called also “trimming hatches” by some of the witnesses.

They were known to be open by the ship’s officers. Through one of these, situated in the port wing, Fleming fell. It is described as a ragged opening in the deck, about four feet square. It was without coamings. The evidence was conflicting as to whether a cover or hatch was kept on the ship for this hole, the weight of evidence indicating that it was not constructed to be kept covered. The doors of the hunker were open when the ship arrived and when she was turned over to the stevedores, hut the evidence is conflicting as to whether or not they were kept open all the time she was in port.

They were open when Fleming went aboard. In the morning he had been working in No. 3 hold, but in the afternoon was shifted to No. 2 hold, and carried his clothes with him, according to the custom. With others, he entered one of the doors of the hunker, which then stood open, and deposited his clothes in the vicinity of the trimming hole on the port side. Between 5 and 6 o’clock in the afternoon he went into the bunker after his clothes, and about 7 o’clock in the afternoon his body was found directly under the trimining hole on the port side, his neck broken, he having fallen through the hole. In Cannon v.

The Protos (C. C.) 48 Fed. 919, the libelant was a laborer under the head stevedore employed by the master of .the ship to unload her cargo. When he quit work on Saturday, he left bis overalls in between-decks, and, returning on-Monday, he went down the ladder of the main hatchway to get his overalls. While engaged in getting them and changing his clothes, he fell through a small feeding or trimming hole in the lower hold, breaking his aim, and otherwise injuring himself.

The court held, Judge Acheson presiding, that it was negligence, for which the vessel was answerable, to leave this small trimming hole open and unguarded in a dark place, where it might be expected the shovelers would go to put on their overalls, and where their clothes were, and where they had a right to go for that purpose. In The Helios (D.

C.) 12 Fed. 732, which was an action for damages for personal injuries sustained by falling through a hatch in the between-decks, Judge Brown said: “When the first mate told the stevedore the vessel was ready for him to proceed to stow the cargo, that was a virtual warranty against all such traps in the darker parts of the vessel, which could not'be, or would not. be, perceived in the ordinary course of stowage.” Fleming was employed to be on the vessel. He was not there as a volunteer. He unquestionably had the right to pass through the open door into the bunker, and leave his clothes there.

He was not expressly invited to do it, but the situation and circumstances made it perfectly natural that he should do it. It was what was to be expected.. Fleming’s following the custom of the stevedores to store their clothes in such places, the open doors, the dark place, the open trimming hole, and its unguarded condition, all combined to produce the accident. That the shipowners were guilty of negligence, under the circumstances, in turning the ship over to the stevedores in such condition without warning to them, seems to us, sustained by reason and authority. Gerrity v. The Kate Cann (D.

C.) 2 Fed. 241; The Illinois (D. C.) 63 Fed. 161; The Terrier (D. C.) 73 Fed. 265; The Wm. F. Babcock (D. C.) 31 Fed. 418; The Anaces, 34 C. C. A. 558, 93 Fed. 240. In Gerrity v.

The Kate Cann, supra, the court applied to an admiralty case the general principle that “persons inviting others on their premises are answerable for anything in the nature of a trap upon their grounds.” The principle seems clearly applicable, but always with the understanding that a ship must be so constructed as to be suited to the purposes for which it is intended; and if, in so constructing it, dangerous places are produced, the shipowners are not in fault.

Coaming or railings around the trimming holes would have added to the safety of those on board, but such guards would have rendered the trimming holes less useful, or perhaps useless. The shipowners were not, therefore, in fault for permitting them to remain without coamings or guards. But, knowing that they were in this condition, and in a dark place, a proper care for the safety of others invited aboard ship would require those in charge of the ship to give notice of the danger, or to have the doors that led to the danger securely closed.

At all events, it seems to us negligence to have open doors leading to the dangerous holes under circumstances that would almost certainly cause men at work on deck to enter the bunker, where the holes were hid from view by the darkness. The officers of the ship could have prevented the accident by keeping the doors' closed which opened into the spare bunker. They were opén when the ship was turned over to the stevedores. The custom was for the stevedores, when engaged in cleaning the ship, to leave their clothes in some suitable place on the deck above where they worked.

There was no other convenient place except in this bunker. The doors stood open invitingly. • On the day Fleming left his clothes in the bunker, at least five other men likewise left theirs. Under the circumstances it was a natural thing to do. Conceding that the trimming holes were not made to be kept covered, they could have easily been covered temporarily; and they were in fact so covered soon -after the accident so as to store grain in the. bunker. We do not say it was negligence not to cover them.

Under all the circumstances of this case, however, we think it was negligence on the part of those in charge of the ship to turn it over to the stevédores with the doors of the bunker open without notice to them of the trimming holes, when they were uncovered, and in a dark place, where the stevedores and men at work on the ship were at liberty to go and likely to go. The evidence does not sustain the contention that the stevedores’ foreman, E. C. Green, had notice of the holes in ihe hunker.

He testifies positively: “I did not see any opening or hatches or holes in the cross bunker of No. 2 hatch, in the lower ‘tween-decks, until after Fleming was killed. 1 never went in there until after he was killed. I saw them after Fleming was killed, and they were uncovered when 1 saw them.” We do not think Fleming was guilty of contributory negligence. The libelant also appealed from the decree. She assigns as error that the damages allowed ($2;500) are insufficient in amount. On tlie evidence we cannot say that the court erred in fixing the amount. The decree of the district court is affirmed.