RAMJAK v. AUSTRO-AMERICAN S. S. CO., Limited, 186 F. 417

PARDEE, Circuit Judge (after stating the facts as above). The trial judge apparently took the view that under the evidence Ram-jak’s injuries were the result of an accident for which neither the carrier nor his servants were responsible; but we do not so read the evidence. Ramjak was a passenger for hire, and no fault can be imputed to him.

The unfortunate sailor involved was presumably in the performance of a duty, and he was or should have been under the eye of the officer of the deck, and when to show his dexterity and skill he undertook the dangerous, and in the absence of an emergency “foolhardy,” feat of climbing the fore-topmast backstay, thereby unnecessarily endangering his own life and possibly the lives and limbs of those persons rightfully on and about the deck, he was guilty of negligence, and, as his bravado resulted in injury to Ramjak, the carrier is unquestionably answerable. There is no question of selection between two safe ways.

The usual way by the ladder in the side rigging was ordinarily safe; the way by climbing the backstay was res ipsa loquitur not only dangerous for the climber but unsafe with .reference to the ship’s company and passengers. -The carrier of passengers for hire is bound to give all reasonable facilities for the reception and comfort of passengers and to use all precautions as far as care and human foresight can go for their' safety on the road. He is answerable for the smallest negligence in himself or his servants. See Kent’s Comm. vol. 2, p. 601; Shearman & Redfield on Neg. (2d Ed.) § 266.

And this is the rule in admiralty. See The New World v. King, 16 How. 469, 14 L. Ed. 1019; The Oriflamme, Fed. Cas. No. 10,572; The Anchoria, 83 Fed. 847, 27 C. C. A 650. Prom this view of the law and the facts it follows that the appellant, libelant below, is entitled to recover compensation for his injuries and resulting damages.

Under the evidence given by himself, appellant should be classed as a laborer dependent for his living upon his physical capacity to perform manual labor; and with his apparent determination, energy, and industry he could well look forward to earning in this country from $2.50 to $3 a day for 300 days in the year.

Crippled, with one leg an inch and a half shorter than the other and some resulting infirmities (all of which is the direct result of his injuries), his earning capacity has been decidedly impaired, in our judgment to the extent of SI per day, and the compensation in this respect can be assimilated to an income of $300 per year. During his expectancy of life, which, at 24, is 38.59 years, the present value of such an income at 6 per cent., the usual business rate is this country, would be about $4,500 in round numbers.

He undoubtedly suffered pain and anguish during his cure and convalescence, and in that I think we can safely follow the late Mr. Justice Bradlej, who allowed in a very similar case in the matter of injuries the sum of $500. See Miller v. W. G. Hewes, 1 Woods, 363, Fed. Cas. No. 9,594. Also see William Branfoot (D. C.) 48 Fed. 914.

According to the same cases, appellant is also entitled to compensation for the loss of his labor from tlie time be arrived in the port until he was discharged from the custody of the steamship company and admitted into the country, for which allowance should be made at $1 per dajp based on the fact that as he was a foreigner just come into the country, and, not versed in our language, he would have had some difficulty in getting employment, and his board was paid, and which period was from the 16th day of December, 1907, to April 4, 1908, in which there was about 100 working days.

As appellant was necessarily in the custody of the steamship company during this period, confinement in the infirmary and parish prison may be considered as dam-num absque injuria. Appellant makes no proof of medical and surgical expenses and attendance. The decree of the District Court is reversed, and the cause is remanded, with instructions to enter a decree in favor of libelant and against the respondent for $5,100 damages and all costs.