896
REPoRTER,vol. 54.
Iris aPPlIretlt,:th:MJ.nlWdods,Thomai ]r:i V 60rheis, E. J.' OOIneaux, and Walter Comeaux were not parties to the stilt in the court below; and there is nothing ill the record to ,sllow are prlvyto the said'stiit,except that in the unsworn petiti9n ,f(lr appeaT they are styled "owners of the steamboat Whisper." Ha,vmgjllO right to join inthe ,appeal, it follo)Vs that as to the pliU'ties. named the appeal should' be, dismissed. '" Such dismissal, however, ought not to affect the appeal'; .to the appellants, as the joinder complained of has not prejudiced the appellee. The rule that, where there is a joillt judgment against several parties, aUD).ust join in the appeal, or tJ:1,ere must be a summons and severance or equivalent proceeding, (see Estis v. Trabue; 128 U. S. 230, 9 Sup. Ct. Rep. 58,) is said by the s:upreme court in Owings v. Kincannon, 7 Pet. 399, based on the propriety, if not necessity, of bringing the whole cause before the court. In the case.of Hardee v. Wilson, 146 U. S. 179,13 Sup. Ct. Rep.. 39, (recently decided,) the same court says that there jtre two reasons for the rule: (1) That the successful party may beat liberty to proceed ill the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. In the present appeal, William E. Barre is master of the steamboat Whisper, and lawful bailee thereof,representing all the owners, and his appeal brings the whole cause to this court, and rio other parties appellant Were necess,ary. John F. Ajl{en's interest appears of· record, as d(les that of Bernard H. Menge. Both had a right to appeal, and theil'joinder with Barre does not prejudice appellee. The motion to dismiss the appeal should be granted. as to J. B. Woods, Thomas R. Voorheis, E. J. Comeaux, and Walter Comeaux, but overl'lJ.led as to the other appellants, each party to pay his own costs on this motion; and it is so ordered.
AIKEN et aL v. SMITH. (Circuit Court of Appeals, Fifth Circuit. January 23, 1893.) No. 54. :MASTER AND SERVANT-CONTRIIlUTORY NEGLIGENCE-PERSONAI, INJURIES.
The engine used for hoisting and lowering a boat's stage could only move one way, and could not reverse. It was the duty of the fall tender to put proper turns of the fall or rope around the drum while it was stationary, and then payout or receive the slack according to the way the drum should turn. Thinking the engine running the wrong way, he attempted to throw the turns off the drum while it was in motion, and was, injured. HeW, that he was &"Ililty of negligence, and the fact that the engineer was an inexperienced person did not contribute to the injury.
Appeal from the District Court of the United Statesfol' the Eastern District of LoUisiana. In Admiralty. Libel by Charles Smith against the Whisper, (John F. Aiken, claimant,) in a' cause of subtl'a.ction ot
AIKEN V. SMrrH.
897
wages, and damages, Givil and maritime. The· district court rendered a decree in favor Of libelant. The claimant appeals. Be'versed. John D. Grace, for appellant. Richard De Gray, for appellee. Before PARDEE and McCORMICK,Circuit Judges, and LOCKE, J)i8trict Judge. PARDEE, Circuit Judge. The appellee, Charles Smith, exhibited his libel in the district court against the steamboat Whisper in a cause of subtraction of wages, and damages, civil and maritime, and therein claimed that, having lately been employed as a roustabout on said steamboat, he had been assigned against his will to act as fall tender in connection with the hoisting and lowering of the boat's stages, which were very large and heavy, and were and could only be operated by steam power and a steam engine; and at the same time the mate of the said steamboat, without previous notice, selected and designated a boy from 13 to 15 years of age, and with· out experience, to run said engine by which said stages were to be operated j and in the third article of the libel it was alleged"That while said steamboat was on said trip going towards Donaldsonville aforesaid at a poiI1t in St. James Parish, at about 12 o'clock at night, she undertook to make a landing, when libelant was ordered to go to the steam· boat's drum, hanging under he1' boiler deck forward and abaft of the steps, so as to lower the stage as the boat arrived at a bank; that, as she was at or near the shore, the first order was to lower the stage, which he did, having three turns of the fall around said drum, and the stage was lowered to a certain extent, and thereupon another order was given, and to raise the stage, and your libelant at once put wore turns of the fall around the drum, that llIlid stage might be raised by said steam engine; but that the boy in charge of the said engine, not being competent and experienced, and being unfit and incapable to discharge the duties of stage hoister, started the engine in the opposite direction, Whereby libelant was caught in said fall, and carried partly arouJ](l said drum, and, before the same could be stopped, was left suspended In the air with his head downwards, and had the fir\lt and second Jinger ot his right hand cut ott between the said. fall and e;oaid drum."
For the injuries suffered, the libelant claimed the sum of $2,500, and, in addition thereto, the sum of $7.50 for wages. The claimant's answer, in substance, is to the effect that the libelant was hired as fall tender; that he was injured through his own fault and negligence, and without the fault of the steamboat Whisper or her own· ers; and that the amount due him for wages had been fully tendered to him and refused. On the hearing the district court found as a fact "that the injuries sustained by libelant while on board of the steamboat Whisper, and employed thereon as a mariner, resulting in a contusion of the thumb, index, and middle fingers of the right hand of said libelant, and the subsequent amputation of the said index and middle fingers, were caused through the fault and negligence and want of proper care of those in charge of the navigation of said steamboat Whisper," and thereupon ordered and decreed th8:t the libelant should have and recover from the steamboat Whisper the sum of $506.75, as follows: $6.75, amount tendered by claimant v.54F.no.5-57
-&98
FEDERAL REPORTER.
vol. 54.
for wages due" aDd '500 damages, with legal interest ,from judicial demand, and costs of lUit. The claimant, having taken an appeal to this court, makes 11 assignments of error, amounting, in substance, to a complaint that the finding of the district court is against ' the evidence. Taking the case as stated in the libel, -it is by no means clear that tl;1e libelant did not contribute by his own negligence to the injuries he received. His duty as fall tender was to put proper turns of the fall around the drum while it was stationary, and then payout or receive the slack of the rope. according to the way the drum should turn. . In performing this duty, it is difficult to understand how the·, fall tender could be caught in the fall and carried partly around thedrulll, whichevel: way it might turn, unless he was negligent eithe.r mhandling .the rope or in the position which he occupied. However this may his own evidence clearly shows that he was guilty ofnegligence at the time he received his injury. Letting alone the conflict generally apparent in his evidence, he fully admits on examination that, at the time 1;J.e was injured, he was trying to throw the turns of the fall off from the drum while it was in motion: . "Question. It you had not attempted to change the rope on the drum, and let that rope run out, would you have been caught? Answer. I can't tell you about that. After the boat or by the boat springing, that made the full weight of the stage on me, and he running the wrong way. Q. That is not an answer to my question. '1 asked you very pla1nly, if you had not attempted to change the rope on that drum, and let it run out, would you have been caught? A. Oh, Yes. · ·· Q. Why did you 'take the rope off the drum? A. I hollowed· to the boy to reverse the engine. He ran the nigger engine the other way and let the stage down. He ran it backward. Q. And you tried to throw the turns off the drum? A. I got one of them oft; Q. You tried to throw it off? A. One turn. Q. Did you not try to turn all of them off? A. No, sir. Q. What was your reason for throwing one off? Q. Because I thought as the engine was running the wrong way, andtbat was to give him a chance to reverse it. " · ., Q. SO that when they ran the engine this wrong way, notwithstanding that fact, if you had let that rope alone, you would not get your hand caught in trying to throw the rope off the drum? A.' One turn I threw off. Q. Did you not want to throw them' all off? A. No, sir. Q. Why did you want to throw one off, and not all? A. Because I thought I had one too much."
The evidence shows, and the libelant substantially admits, that the complaint in the libel that libelant was desigriated against his will to act as fall tender is not true, and that in fact he was hired expressly for the purpose of acting as fall tender. We:do not agree with the finding of the district court that negligence on the part of those in charge of the navigation of the steamboat Whisper caused the injury suffered by libelant. The evidence does show that a boy somewhere between the ages of 13 and 18 was employed to run the nigger engine used in hoisting the stages at various landings on the trip, and leaves it in doubt as to whether the· boy so in charge· of such engine was fully competent or not to generally manage the same. At the same time the evidence clearly shows that the manner in which the engine was handled did not contribute to the libelant's injury. Four intelligent witnesses, apparently without any other interest than that arising from being em·
THE CURLEW.
899
ployed on the steamboat, and whose personal conduct in regard to the affair was in no wise blamable, testify that at the particular time the libelant was injured, and as generally the custom on board the boat when on a voyage, a wooden block was inserted and fastended in the slide in which moves the lever which operates the nigger engine, in such a way that the engine could only run one way, and could not be reversed. The witnesses testifying to this were the first mate, second mate, watchman, and captain of the watch, and there are two circumstances that corroborate their testimonY,-one that the libelaht was taking the fall off the drum at the time of jury, which would have been unnecessary if the engine had been reo versible; and the other that a call was made to reverse the engine to release libelant from the drum, and the little boy said: ''You can't do it. There's a stick in it." The j)nly evidence to the contrary is that of libelant's partner, who testifies to the custom, but denies that the block was there on that particular occasion. If the wooden block or chock was in its place, then it made no difference whether the boy in charge of the nigger engine was competent, so far as in· jury could result to the libelant, for the boy could only run the en· gine one way; and whether it properly operated to hoist or lower the stage, and, in so doing, take in 01' payout the slack of the rope, would depend entirely upon whether the turns were properly put around the drum; and that was entirely the business of the fall tender. The whole evidence in the case satisfies us that the libelant con· tributed to his own injury, and does not satisfy us that the steamboat or her owners were guilty of any fault which contributed to said injury. A decree against them for damages could only be on the ground that they had employed an improper person to run the nigger engine, and while this improper person was running such engine the libelant was hurt. The amount due to the libelant for wages was offered to him before suit was brought, but was reo fused. In the claimant's answer the tender was renewed, but no legal tender of amount due, with costs to date thereof, has been made. The decree appealed from should be reversed, and the case remanded, with instructions to the district court to enter a decree for the libelant for the sum of $6.75, and costs in that court, the costs of this court and of appeal to be paid by libelant; and it is 80 ordered. THE CURLEW. CONSOLIDATED COAL CO. v. THE OURLEW. (DIstrict Court, S. D. New York. July 9.1892.) KUITIMlIl LIENS-SUPPLIES-PERSOYAL CREDIT Oll' CHARTERERS.
When the llbelant supplied coal at Baltimore for the British ship Curlew, to the ch.'\rterers, who were her owners pro hac vice, at their place of resi· dence, and without llny refer('nce to the ship as 6eeurity, charging the charterers individually on their books, and making no claim against the vea· lei. until after tho charterers' tallure, held, that the 8upplles were furnished