Lorenzen v. Inter-Island Steam Navigation Co.

Estes, J. This is an action for damages in tbe sum of $10,-240, for injuries received by libellant wbil© on board tbe American barkentine “Irmgard” when said barkentine was anchored in tbe harbor of Honolulu about seven or eight bnrudred feet off shore, and while title “Noeau,” a steam vessel owned and operated by the defendant, tbe Intor-IsLamd Steam Navigation Company, Limited, a Corporation, was anebored alongside of the said “Irmgard” and was discharging sugar into the “Irmgard” from tbe hold of tile “Noeau” by means of machinery and appliances belonging to the said “Noeau.” Tile complainant w-as first officer of tbe “Inngaad;” that with — 269 — the exception of having given orders to the crew of the “Irmgard” to prepare the hatch with the chutes for the reception of the sugar, he had nothing whatever to do with the discharging or unloading of the said eargoi of sugar into the hold of the “Irmgard.” It seems that between nine and ten o’clock in the morning of Jaauaoy 30'th, 1902, the “Noeau” came out alongside of where the “Imgard” was lyingi with her head to the shore; and anchored alongside of the “Irmgard,” the “Noeau” being beaded off shore, so that they lay port to port. That after the “Noeau” came alongsideiof the “Irmgard” the crew of the “Noeau” commenced preparations to hoist the sugar out of the hold of the “Noeau” and to discharge the same into the hold of the “Irmgard.” It is admitted that the following is the process by which the sugar was transferred from the “Noeau” to the “Irmgard,” to-wit: Said “Noeau” had two masts, and from the foremast leading aft, was a wire rope. Attached -to this span, and so placed as to be directly over said “Noeau’s” hatch, was a block, and through this block a fall was rove, one end of which was fitted with a hook, while the other end led to the steam -winch aboard tbe “Noeau.” The purpose of said hook was to attach said fall to the sling loads of sugar for the purpose of lifting them from the hold of said “Noeau;” attached to the foremast of said “Noeau” was a gaff with a block made fast to its outer end, and through this block was rove a rope commonly known as the burden line. This burden line was made fast to the aforesaid donkey fall and permanently connected with it and designed to work with it. The: object of said donkey fall was to hoist the sling load out of the steamer hold; and the object of the burden line, oouulected as aforesaid with said block at the end of said gaff was to swing the sling load from over the “Noeau” to over the “Irmgard,” from which deck said sugar would pass into the hold of the “Irmgard” by chutes. As the sling load of sugar rises out. of the hold of the “Noeau,” the member of the crew of said “Noeau” in charge of said burden — 270 — line takes in the slack thereof, SO' that when the “Noca.u’s” winch easetsl up on, the donkey fall the weight of the sling load is rer ceived by the said burden line and as said burden lime lowers tbe sling load to the deck of the “Irimgard,” the member of the crew of the “Noeau” in charge of the winch, then slowly slacks away on said donkey fall, and thus said donkey fall does the work of transferring said sugar, until each sling load is transferred to the said burden lime, and thereafter the work is completed by tbe burden, line. It further was brought out on the hearing that the duty of the man at the burden line was to wrap the said burden line around a post or dolly head, so-called, soi as to ease down the ding load of sugar on to the deck of the “Inngard.” It is admitted that each sling load of sugar made upi in this cargo', contained ten bags, each bag of the average weight, of 125 pounds. It is also admitted 'that the libellant was neither a, member of the crew of the “Noeau” nor a fellow servant or workman of any member of said crew; and tb.a.t be was mot engaged in transferring the sugar from, the “Noeau” to the “Inngard;” that mo machinery or appliances used were owned or operated by tbe “Imgard” nor was any member of her crew used in transfering this freight to thei “Inngard.” It further appears that when the first sling load of sugar was being transferred from the. “Noeau” to the “Irmgiard,” and was over its decir, it struck the libellant, who was on the deck of the “Inngard,” knocked him down, rendered him senseless and broke his right leg below the knee; that libellant was therafter removed to the Queen’s Hospital in Honolulu, where he remained, undergoing medical treatment until IVIay 5, 1902. The question involved in this case is one of negligence. Conceding the fact to be admitted that libellant received the injury for which he claims damages, was such injury the direct result of the defendant’s negligence, or was there such contributory negligence on tire part of the libellant as to defeat Ms recovery of damages1? — 271 — It is a well known principle of law in eases of this characi that negligence of the plaintiff must have contributed directly produce the injury in order to defeat his recovery. In oth y words, his negligence must have been such that but for iit the injury could not have happemled. Wharton on Negligence, 302; Railroad Company v. Jones, 95 U. S. 439; Mark v. Hudson, etc., B. Co., 56 How. Pr. 108; Harvey, Administrator, etc., v. The New York Central and Hudson River R. R. Co., 19 Hun. (N. Y.) 556; Kennard v. Burton, 43 Am. Dec. 249; (25 Me. 39); Haley v. Earl, 30 N. Y. 208. And the principle is equally well established, that the negligence of the defendant cannot be excused on the. score of the negligence of the plaintiff. While the theory that every man must look out for himself prevails in so far that hei shall not place himself deliberately in the way of injury, yet the law contemplates that every man in bis relation towards others, shall conduct himself with reasonable care and prudence, no matter what the imprudence of others may be; and if by so conducting liimself hie can avoid injury to the person or property of others, he is liable for any injury resulting from a neglect to exercise such reasonable care and prudence. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Needham v. S. F. & S. P. R. Co., 37 Cal. 409, 419-20; Essery v. S. P. Co., 103 Cal. 541, 544-5; Lee v. Market St. Ry. Co., 335 Cal. 293, 295-6; Baltimore & O. R. R. Co. v. Hellenthal, 88 Fed. 116, 120-1. “It is correctly stated that generally between persons standing in no particular relation to each other, as in this case, that alone is reasonable care, which in the judgment of men in general, is proportionate to the probability of injury to others; and, consequently, he who does what is more than ordinarily dangerous is bound to use more tiran ordinary care.” (Morgan v. Cox, 22 Mo. 373; Durant v. Palmer, 29 N. J. L. 544, 546.) “The measure of care against accident which onie must take to avoid responsibility is that which a person of ordinary pru — 272 — deuce and caution would use if his own interests were to be affected and the whole risk were his own.” (The Nitro-Glycerine. Case, 15 Wall 524.) It is claimed in this case, as in almost all cases of a similar character, that the libellant's injury was due to his own negligence and carelessness; and that in -this instance -the negligence consisted in mot only mot heeding tire alleged warnings from the “Nocau,” at or about the time tire first sling load of sugar was coming over to. the “Irmgard,” but im apparently deliberately placing himself in danger of losing his life or limb by walking toward the sling load of sugar as it was swinging rapidly toward him. It must be confessed this latter contention of counsel for defendant, does not appeal to. the. common sense of the Court or its experience of mear in general. While it is true that in moments of great personal peril, a mam may under* the excitement of the moment fail toi act with the cool, deliberate judgment that may characterize him in the ordinary occurrences of life, but may, under tire stress of excitement, do exactly the reverse of that which is best for his safety, yet Courts do mot as a rule treat such conduct as contributory negligence. “A plersom of ordinary intelligence will not purposely expose himself to danger.” Cassidy, Admistrator, etc., v. Angell, Town Treasurer, 12 R. I. 447. . “The instinct of self-preservation is strong in human mature and stands for proof of care;.” Allen v. Willard, 57 Pa. St. 374; Cleveland and Pittsburg R. R. Co. v. Rowan et ux. 66 Id. 393; Thomas, Adm’r, etc., v. The Delaware, Lackawanna & Western R. Co., 8 Fed. Rep. 729, 731. Put is such contention borne out by the testimony in this case? While it is truei that Porter, the engineer of the “Nocían,” testified strongly that Loremzen stepped forward two. and a, half feet to meet the sling of sugar, and was struck in the front and knocked down by the sling load, yet he is the solitary witness in the case who so testified; and as I have before stated, such a statement of fact does mot appeal toi the reason of the Court aside from a consideration of the other flatly contradictory evidence — 273 — upon: 1110 same point. Lorenzen testified to- the effect that he had been sitting on the rail of the “Irmgard” when he saw the sugar was about to be lifted out of the bold of the “Noeau,” but before it had reached the fop of the hatch, he got down and walked forward, away from the after hatch of the “Irmgard,” where the sugar was supposed to land; that he heard northing in the way of warning from the “Noeau” until a voice called out, “hold on, hold on,” when ha looked and the sling load was upon him, struck him on the shoulder, when he, fell under its weight, and the load again struck him on the knee and broke bis right leg. Oaptain Schmidt of the “Irmgard” testified that at thei time the accident happened “Lie (Lorenzen) was doing nothing; I did not observe him carefully; I was watching the sugar more than tbe mate.” It appears from, the deposition of Mr. Krause, the-second mate of the “Irmgard,” that lie testified on this point as., follows: Q. “When the first sling load of sugar came over, what was he (tbe libellant) doing? A. Walking. Q. In what direction was he going? A. He was going forward at -the time. Q. On which side of the ship? A. On the port side......... Q. Did you notice where the sugar struck him? A. Right back of the shoulder. ' Q. What did it do toi him ? A. Rolled him over, knocked him down and rolled him over. Q. What knocked him down, the sugar or the fenders? A. The sugar. Q. Did' you notice whether he made any attempt to look out? A. Yes, sir, he did. Q. What was it? A. lie tried to run forward. — 274 — Q. And it struck him before he got forward? A. Yes, sir.77 Pealhi, a stevedore, than working on the “Irmgard,77 testified that “when, the sugar was in the act of being slung over1, the mate began to move forward towards the bow of the ‘Irmgard,7 when the sugar struck him on the shoulder; that he fell down by the blow of tbe sugar and as he went down the sugar went night on his leg and broke his leg.77 Pnnaloa, also a stevedore, 'then on the “Irmgard,77 testified that while they were fixing the ■chutes on the “Irmgard,77 “the mate left the hatch and walked— that is, went towards the bow in a sort of diagonal way,........ when tire sugar struck him, it struck him on the shoulder blade;77 while Oomi, another stevedore, testified practically -to the same effect, “that he was walking forward when he was struck by the sling load of sugar, and he was struck from behind.77 In, addition' to the foregoing, the testimony of Grahan, the tally clerk of Schaefer' & Oo. on board the “Noeau.,77 taking tally of tire sugar at tbe time of -the accident, is indirectly strongly corroborative of the fact that libellant was going forward when .struck by the sling of sugar*, and is in contradiction of the testimony of Porter, the engineer of the “Noeau.77 Gahan says that ‘“when the sugar was coming over*, he (Lorenzen) was ten feet, seven or eight feet, or nearly ten feet from the after hatch of the ■‘Irmgard;7 77 and when he was injured, “he was lying on the ■deck thirteen or fourteen feet from the forward part of the Latah.77 Kaamana, the man from the “Noeau77 sent over to sew .any broken hags, testified that when he first saw Lorenzen he was standing at the rail of the “Irmgard,77 somewhat forward of the hatch; but he afterwards saw him lifted up from a place nbout nine feet forward of the hatch, not the place where he :saw him first. There seems to he no reasonable explanation for this change ■of position testified to by both of these witnesses, other than upon the legitimate assumption that Lorenzen had moved forward and was moving forward when the sugar struck him. I think it is clearly in evidence that the libellant did all he could to avoid the injury. The evidence of the physician who at — 275 — tended him directly after -the injury is also1 corroborative of the blow being from behind. Dr. Sinclair testified that the bruise upon the shoulder “was excessively severe.” Dp on this question of warnings having been given, the evidence is conflicting; no twoi witnesses testifying to a like state of facts. "While.! am inclined to. think it possible thait some sort of warning may have been given of the corning over of tbe sugar, yet it would be difficult to elucidate from the mass of contradictory testimony just what the warnings were or by whom given; some of the witnesses testifying that the warnings came from the “Irmgard” and others that they came from the “Noeau”; while many testify that there were no warning’s, other than the words “hold on, hold on,” from Captain Peters'enj to the burden man. Captain Petersen of the “Ndeiau” testified that he said “look out the sugar is coming” when the sugar was in thei aiir, after it had been lifted out of the hold of the “Noeau;” Porter, the engineer of the “Noeau,” says the. oap>tain (Petersen) called out “stand clear”; while -the tally clerk, Iiarry Gahan, testified that Captain Petersen called out “to look out on deck.” Schultz, the mate of the “Noeau”, who. did not see the ’accident, said that while in his room, he 'heard a lot of yelling, “get out of the way, stand clear.” But no one of the witnesses introduced by plaintiff testified to having heard anything but the “hold on, bold on” referred to by Loremzen, just before tbe sling load struck him. Captain Schmidt of the “Irmgard,” who had no reason to he other than a plerfee/tly disinterested witness, testified as follows: “Q. Before this first slingl load of sugar was transferred from the ‘Noeau’ to the ‘Irmgard’, did you hear anybody, did you hear Captain Petersen or anybody call out or say anything relative to tire sugar coming aboard? (A) Not that I remember before the first sling load came over. (Q) You did not hear anything? (A) Not before the first load. (Q) When was ’the first time you heard any tiring? (A) The first time I recollect hearing anything was when I heard ‘hold on, hold on’; that was the first time I recollect.” — 276 — Alad Mr. Krause, the second officer of the “Irmgard”, also bears out the testimony of Lorenzen in this regard, as he swore as follows: “Q. At th'e time of this occurrence or at the time of this matter of which we have just been talking about, or just previous to that time, did you hear any shouts or any calls from anybody aboard the ‘Noeau’ as relative to the fact that the sugar was coming aboard the ‘Irmgard’? (A) I heard a call from our vessel ‘to look out’........(Q.) Did you hear Captain Petersen call out? (A.) No, sir. (Q.) Didn’t you Lear anybody from the ‘Noeiau’ call? (A.) No, sir.” Peahii testified that he heard nothing from tkei “Noeiau” just before the sugar came over; while Punuloa upon being asked whether “when the sugar was being suspended from the donkey fall just above the hold of the “Noeau” or shortly after, he heard 'Captain Petersen say anything”, he answered “no, he did not.” The court is forced to the conclusion that these alleged warnings, if given at all, were not brought home to the libellant, and it appears clear that they were not alone not brought home to him, but there is no testimony that any one on the “Irmgard” heard tire'warnings if any, rendering more probable the truth of the 'statement of Lorenzen that ho did not hear them. But evfem if the warnings had been heard by Lorenzen and disregarded by him, thus showing a degree of negligence, on his part, that would not have relieved the defendant from the results of its neigliglenctei, if any, if by the exercise of reasoimblei care it could have avoided the consequence of the libellant’s negligence. (Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558). It is evident from tire testimony of the witnesses for the defendant, and especially from that of Captain Petersen, that the transferring of the first load of sugar is a very dangerous operation from the fact that it is difficult to tell just where the sugar will land, or how the machinery is going to' operate. If this be so then the utmost care should have been used in the handling of the apparatus. But AVas this, done? — 277 — It is shown that all of the- rope used in thei handling of this sugar was new rope; and there is some proof that the rope stretched, Captain Petersen testifying; that -the forward guy stretched sorn'a five feet. Theme is other testimony that it probably stretched some two or three feet, which I am inclined: to belierve is nearer the troth. It is a matter of common knowledge that ntew rope will stretch. Petersen claimed to' be an experienced mariner, and he should have known this fact and guarded against it. But it is directly in proof that no test was made of the ropes, before tbe work of transferring the sugar began. But, admitting that thei rope stretched five feet, it would only have changed the position of the sugar where it struck the deck of the “Irmgard” five feet; and if it had not stretched, the sugar would have landed about eight feet forward of the hatch, as it is beyond dispute the sugar struck Lorenzen some thirteen feet forward of the batch, when it should have landed near, or somewhere near the edge- of the hatch. When this sling load of -sugar containing 1250 pounds weight was hoisted out of the hold of the “Noeau”, and suspended from the donkey fall, it appears that the strain was then transferred from the donkey fall to the burden lime, and the burden man’s duty was to lower away slowly to the deck of the “Irmgard”, after’ the donkey man has swung out the load free of the deck of llile “Noeau”; and in order to control his burden line, the burden man- is supposed to take sufficient turns of the line around a post or “dolly head” so-called. In this instance, when the sling load was suspended on the burden line, the- man at the “dolly htead” wrapped tbe rope around three times, hut was unable to control its fall. Kalauhi, the burden line man, testified: “When tire sling first commenced to come down, I was ordered to hold on to the slack and as- the sling of sugar came clown it had such a weight I couldn’t very well ho-ld it; there was some slack going through my hands; I suppose that was the time the man was hurt because the sugar was too- heavy.” — 278 — He further testified that the captaba of the “Noeau” told him to “bold on”; that he held on “for a good while, a little while”, but that the rope commenced to run again. “The weight of the sugar made it run.” Hie further testified, “that if he had more turns around the dolly head he could 'have stopped it; that would have fastened it altogether”; while Captain Petersen testified: “Pie tried to hold on so that the sugar would remain in the air and mot strike the deck, and ha couldn’t do it.” And Captain Petersen further testified: “That at the first sling load the burden man took only three turns around the dolly head but he used four turns thereafter because he saw that he could not hold it with three.” This testimony was brought out upon the direct examination of this witness. It is clear that the kernel of this case is right here. Three turns were taken round the “dolly head” alone, and this mam’s injury was the result; after that four turns were taken and no more difficulty was experienced but the fall of the sling load of sugar was controlled. That the reason why the mam at tire burden line could mot control or hold the sling of sugar was that he had not taken wraps enough around the “dolly head” seems to be clear. It was bis duty to have seen this and remedied it, and it was the duty of the captain of the “Noeau" to have realized this and ordered tlrei man ait the burden line to take another wrap, and to see that it was done. Captain Ptetersen admitted that the burden line if held under control, while the sugar was being landed on the deck of the “Irmgard”, would have doubtless placed it in its proper place; and inferentially avoided this accident. That is wlrat the burden line is for, and that is what the burden man is for. And the fact that after the occurrence of the accident, it is in testimony that four wraps round- the “dolly head” were taken, is, a significant one. It is trulei that the testimony of the officers and men of tho “Noeau” was somewhat shadowy as to whether the sling load of sugar went down too fast or mot. Captain Petersen evaded the direct question of the court on this point; but the weight of the evidence bears put file theory that the burden line mam — 279 — lost all control over the fall of the sugar, -and that it dropped by its own weight, possibly not so rapidly as was said by libellant “like a cannon ball”, but certainly -as fast as gravitation could cany it down. That the injury to libellant was caused by the improper handling of the appliances and gear of the “Nofeau” by the officers and crew thereof, who had exclusive control of the same in the-transfer of this sugar is plain, after a consideration of all the-evidence; and the fact of this exclusive control is am important-element in this class of cases. Miller v. Oceanic Steamship Co., of Savannah, 118 N. Y. 199, 208-9; Cummings v. National Furnace Co., 60 Wisc. 603, 612; The Robert Lewers, Estee, J., decided Mar. 27, 1901; (1) The Robert Lewers Company v. Kekauoha, 114 Fed. Rep. 849. And especially ia this so in-view of the fact that the Court is unable to¡ hold that there was contributory negligence on, the part -of the libellant. Now as to the amount of damages. There is no question as to the injury to the libellant and he- is- entitled to some damages, not alone for the pain- and suffering produced by the injury, but -also for the posáb-le length of time that he may be incapacitated from pursuing his calling of seaman. It is in evidence that Lorienzem was acting as first officer of the “Irmgard”, at a salary of sixty dollars per- month when the accident occurred; that he was physically a sound, well man when he was injured; that he holds a certificate as first officer for sail and a certificate as second officer for steam. It seems reasonable to suppose that if this injury had not been inflicted, he-would have been a sound man and able to pursue Ms calling, iininterruptedly at a salary of at least sixty dolíais per* month for many years to come. Dr. Taylor, an expert called for the defendant, testified that in his judgment, while the injury was permanent, yet -the body of libellant would adjust itslelf in timer to the shortness of tire injured leg, and that he thought “at the end -of two years the leg will be as useful as it was before it was liu-rt.” I am inclined to think that this is so, and being so that at the end of two years he will be able to resume'bis vocation of seaman, if not possibly before that time. I will therefore- allow — 280 — lib ella,nit the sum of fourteen hundred and forty dollars, being the amount of wages at the rate of sixty dollars per month, which it is reasonable to assume he would have belen able to ■earn in two¡ years from the time of the injury, had he not been deprived of the ability to' do so by this injury. In addition thereto, libellant is entitled to something for the injury itself and the pain and suffering consequent thereon. The evidence shows, that the injury was a very grave one; in fact according to both the testimony of Dr. Humphrds and Dr. Taylor, thle injury is permanent, although the disability doubtless is not. That while tlie bones have- knit, the joinder is not perfect, but is an overlapping one; that there is a curvature and the leigl will continue to be from three quarters of am. inch to am Inch shorter 'than the other. In addition to the breaking of the leg, the libellant suffered grave bruises, the bruieie on the shoulder being “excessively severe”. Ho was confined to the Queen’s Hospital for three months and some few days, suffering much pain; and it is in evidence that h'a still suffers pain and according to. Dr. Humphris, there is a possibility that lie will always .'Suffer pain. It is difficult to measure pain in money. In most • of the eases examined by the court, wherein injuries of a similar mature were sustained, 'tlie average damages assessed is about .four thousand dollars; in full of everything. However, in tire ■main, these eases show an injury if not greater at the outset, yet more severe in the permanent disabling effects than in the case .at baa-. I am therefore of opinion that in view of all the cir•cumstanees of this case; the snm of fifteen hundred dollars would be a fair compensation for the extra pain and suffering endured by libellant and will allow that amount in addition to the fonr■teen hundred amid forty dollars already allowed, making a total -of two thousand ninle hundred and forty dollars, together with ■costs of suit.” Let judgment be entered in accordance herewith. (1) See ante, Kekauoha v. Schooner Robert Lewers Company, page 15.