Dolan v. Atwater

Barker, J. The only thing which the plaintiff contended to be a defect was that the latch on the tub was a little looser than the latches on the other tubs in the yard. But he testified that tubs with latches as loose were in common use, and it did not appear that the looseness of the latch came from wear or breakage, but, on the contrary, that it had long been in use in the same condition as on the day of the accident. While the plaintiff testified that tubs with tight latches would not dump on striking a bulkhead, and a tub with a loose latch would, the only other witness called by him testified that it made no difference, that one latch worked with him just the same as the other, and that a tight latch would dump the same as a loose latch, and upon still further questioning by the plaintiff’s attorney said that he did not know whether a tub with a loose latch would dump quicker or not. In our opinion, there was no sufficient evidence to justify a finding that the defendants were at fault. The plaintiff had been a coal shoveller for fifteen years, and was entirely familiar with the fact that the tubs, by striking the bulkhead or apron, were liable to be unlatched, and to dump the coal back into the hatchways of the vessel, and testified that tubs with latches like those on this one were used in other yards only when the coal had been so far removéd from the hold that workmen in it could get out of the way. There were 276 but two tubs in use on the morning of the accident. They were where he could examine them without interfering with his work, and their condition and the fact that the hold was so full of coal that if a tub should strike and dump he could not get out of the way were obvious, and must have enabled him with due care to have fully appreciated the risk that the tub which was in use on the other side of the hold, and which had gone up and down forty or fifty times while he was at work, might dump coal upon him while the hold was so full that he could not get out of the way. Exceptions overruled.