La Coco v. Massey Steamship Co.

Jones, J. This action was brought and was tried by both parties on the theory that it was a common-law action subject to the jurisdiction of the state court, and no remedy against the vessel was claimed. Although the suit might have been brought in the admiralty court the state court administering common-law remedies had concurrent jurisdiction. Georgia C. Co. v. American M. Co. 169 Wis. 456, 172 N. W. 148. The jury found that the iron coaming on the second deck rendered the hatchway an unsafe place for persons to work, that respondent was negligent in permitting this unsafe condition, that this negligence proximately caused the injury, and that appellant was not guilty of contributory negligence. After the usual motions the trial judge gave judgment for appellant upon the theory that there was evidence to support the finding that the place was not reasonably safe because of the manner in which the iron coaming was fastened to the second deck. The circuit court, however, concluded that there was no testimony that the ship was unsafe when turned over to the unloaders, but that the injury was due entirely to the operations of the latter. It will be seen that the real issue submitted to the jury as to defendant’s negligence was whether the coaming rendered the hatchway an unsafe place to work. The principal argument now made by appellant is that the boat was struc [548] turally defective because part only of the second deck had been removed. It was the undisputed testimony that the coaming was for the purpose of strengthening the ship and protecting the remaining part of the lower deck from knocks which might be given by the clams and also for protecting the cables by which the clam was operated from being cut by the edge of the plate. The testimony showed that after the accident it was found that the iron was in good condition but torn apart and that the rivet holes were torn and that the rivets of a piece of the coaming were torn through the plate. The testimony was that when the boat was inspected the coaming was in good condition, including the bolts and rivets. After the inspection the boat came over a quiet sea to Toledo, where it was loaded with fine soft coal by means of a long spout and pump which’in no manner had the effect of loosening the coaming or making it unsafe. After being loaded the boat started upon its trip to Milwaukee, where it landed on the night of June 26, 1919. Nothing was done after leaving Buffalo to impair the coaming between that time and the time when she was docked in Milwaukee. After docking in Milwaukee the boat with its cargo was turned over to the Kanawha Fuel Company. The defendant had nothing to do with the unloading of the boat. The evidence showed that it was the custom, when boats were changed by removing part of the deck, to have a coam-ing for the protection of the boat, and that in careful operation the clam seldom strikes the sides of the hatchway. It is conceded by appellant that defendant was in no way responsible for the acts of the Kanawha Fuel Company nor for the acts of the stevedores who unloaded the boat or any of the employees of the company. On the contrary they predicate liability solely upon a structural defect in the boat. There is no evidence whatever that the coaming was not in perfect condition until ten or fifteen minutes before the accident happened. There is ample evidence that after the [549] defendant delivered the boat to the fuel company there was such improper management by the employment of inexperienced employees and the use of imperfect hoisting appliances as might loosen the coaming and cause the injury complained of. The defendant was not bound to anticipate that the unloading would be carried on in so unusual a manner as to damage the boat or cause injury to the employees of the fuel company. The views already expressed are decisive of the only question relating to defendant’s negligence which was litigated or passed upon by the jury. It is urged by appellant’s counsel that the removal of a part of the lower deck left the boat structurally defective .and left the hold an unsafe place to work; but we find no testimony which supports such a claim. By the Court. — Judgment affirmed.