THE IDA B. COTHELL. COTHELL v. LAMB, 62 F. 765

LOCKE, District Judge.

The only allegation contained in the pleadings of the libelant by which it is claimed that the steamer is liable, or charging any fault upon the steamer or any of her officers, is that “the engineer of said steamer, not regarding the danger to which libelant would he subjected by moving said steamer ahead, negligently and carelessly set the steamer in motion, and in consequence thereof said steamer ran ahead, and caused said coil of rope to run off very rapidly, and in consequence of that negligence and carelessness the right foot of the libelant became entangled in- one of the coils of said rope.” It is not averred that the vessel was not properly manned or equipped, or that libelant was ordered by the master to any extrahazardous position or service, although, upon the hearing of the appeal in this court', it is. contended that the master of the steamer was negligent, careless, and indifferent, giving improper orders, and recklessly disregarding the fact that the line which had been thrown into the river had been caught in the wheel of the steamer, and was, at the time they were paying out the second line, in the act of being drawn around it; and that the vessel was responsible for the total• damage, and that the amount given was very much less than the circumstances of the case justly demanded and required.

In behalf of the appellant, the claimant of the vessel, it is contended: First, that the action in rem for an injury suffered on hoard a vessel by any carelessness or negligence of any person on board, and not relating to the furnishing, appliances, or equipments of the vessel, or of the manner in which the vessel herself was being handled, should not be sustained; that, if any action would lie on behalf of the libelant for injuries sustained by him, it would be in personam against the owner or master, and not against the steamer; that the engineer —(he only one charged wirli any negligence or fault — was a co-servant with libelant; that the facts and circumstances of this case show conclusively that there was no negligence on the part of smy of the officers of the vessel which would render her or her owners liable or responsible for any injuries suffered; that the damage suffered by the libelant was the result of his own negligence or carelessness, or the negligence and carelessness of his fellow servants, for which the vessel cannot he made liable.

We will consider these points in an inverse order from herein stated, and a decision in favor of appellant npon any one of them will determine the case. There has been much conflicting testimony in this case, but the material points may be clearly determined.

In reviewing the entire facts of the case, notwithstanding the absence of allegations of fault except in one particular, we consider it immaterial whether or not, the line was first being taken out by the order of the master or against it, as he status it was, for if this was the cause of the disaster which subsequently occurred, it was too remote to influence this case.

If there was any negligence in permitting the line to drop into the river, it must have been the carelessness or negligence of the men in the skiff who attempted to take it ashore, and. finding it insufficient, let it go, as they testified, and could in no wap/ make the vessel liable. The master testifies that he found the libelant at the coil of the rope when lie came from the pilot house, and blamed Mm for meddling with it, but went to help him about uncoiling and paying it out, as it was necessary that something should be done then.

The allegation is that the engineer carelessly and negligently set the. steamer in motion, but the testimony shows (hat the engine had been continually going. The only signal bell which the engineer had received had been the slow bell, when'she came to the bank, to slow down and keep the wheel moving just enough to keep her against it until the lines were taken.out and she made fast.

The steamer was headed up stream against a strong current, with a, large raft immediately astern, with no line out; and not to have kept the wheel moving forward, so as to have kept her in her place, would have been reckless and improper. TJp to that time no one knew or could have known by reasonable diligence and care that the rope had been caughttfin the wheel; and it appears that at the first intimation that such was the case the engineer immediately shopped and backed.

It has been urged in argument in behalf of the libelant that the steamer was insufficiently manned; that had there been ample crew the master could have remained in the pilot house where he could have signaled the engineer to have backed the steamer upon discovery that Lamb was caught in the coils of the rope; but we fail to find any insufficiency in the crew wMch in any way affects the facts of the case herein. There appears to have been on board the vessel the master, two engineers, a white deck hand or line man, a fireman, and a colored boy.

There has been no evidence given either in favor of or against the sufficiency of such a crew, and, in the absence of such evidence, we cannot find that it was insufficient, but, upon the contrary, considering the service, in which the steamer was employed, that she was engaged in river navigation, able at any time to make fast to the bank in case of an emergency, believe that it was ample. The master appears to have acted with judgment and discretion in all matters, as far as the evidence shows.

It does not appear that, had he been in the pilot house at the time of the disaster, the wheel of the steamer could have been stopped any sooner, or the accident prevented. We can but consider that the cause of the disaster was the negligence of the libelant himself, who, Avhile turning over the coil of the rope, and attempting to pay out the end, unthinkingly and carelessly stepped within the loose coils as they were lying upon deck. Any other view would be utterly inconsistent with the positively-proven circumstances.

That the coil of the rope could in any way have "ran around” the ankle or the leg does not appear from the evidence, and we consider it impossible. There is an uncertainty. arising from the testimony in regard to the manner in which the libelant was called upon to pass the line to the boat. It was true he had shipped as a fireman, and that was his duty. He says that he was directed by the engineer to leave his fire, and to pass the men the end of the line. But this the engineer positively denies.

The master also denies that he gave him any orders for passing out the line, and says that he rebuked him severely for meddling with it, and states that the reply he made was that the men in the boat wanted it.

Considering the testimony most favorably for appellee, we fail to find that any fault in the vessel, her appliances, equipment, or officers tended to produce the injury of appellee, and this will preclude the necessity of examining and deciding the further defenses urged by appellant in regard to the impropriety of the action in rem, the relation of the master and engineer as fellow servants of the libelant, or the force or effect of the compromise.

It will necessarily follow that the decree of the court below be reversed, and the case remanded to the court below, with instructions to dismiss the libel; and it is so ordered.