On appeal from the Hudson County Court of Common Pleas.
For the appellant, Edward A. Markley and Charles W. Broadhurst.
For the respondent, Thomas F. Doyle.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. Plaintiff's decedent was in the employ of the defendant as a "floatman" on a tugboat in New York harbor, and came to his death by falling from a steel car float which the tug was taking in tow. Decedent in the performance of his duty had boarded the float, and was in the act of receiving the bight of a hawser thrown from the tug, for the purpose of making it fast to the float, when he lost his balance, fell
overboard between the tug and the float, and was drowned. He was not seen after he fell, and efforts to save him were unsuccessful. It was dark at the time, being about three-thirty A.M. on March 30th, 1932. The plaintiff as general administratrix brought this action pursuant to section 33 of the Merchant Marine act of 1920, the language of which is here inserted for convenience: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employes shall apply; and in the case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employes shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."
The complaint charges negligence in a number of different forms, which will be mentioned as they are discussed below, and need not be enumerated here. Four witnesses were sworn for the plaintiff: the widow herself, substantially on the quantum of damages: the captain of the tugboat, mainly but not wholly as to the circumstances and details of the accident: Frank Brinkman, an experienced shipmaster, called as an expert on the question of safe and proper practice under the circumstances surrounding the accident: and Theodore DeMars, a qualified master mariner, familiar with tugboat conditions in New York harbor. The life expectancy of the deceased was stipulated, and the plaintiff rested. A motion to nonsuit was made and denied, and exception entered. Defendant offered no evidence except certain photographs of car floats for purposes of illustration, and two official "certificates of inspection" of the tugboat, covering a period of time which included the date of the accident. Motion to direct a verdict for defendant was then made,
stating the same grounds as stated in the motion to nonsuit, and was likewise denied and exception entered. Apparently there was no argument of either motion beyond stating the grounds of the motion. The two grounds assigned in both motions were: (1) no evidence of any negligence of defendant or its servants or agents which was the proximate cause of the death of plaintiff's intestate: and (2) that as a court question, decedent assumed the risk of the injuries as part of the terms of hiring. The jury were duly charged, and returned a verdict for the plaintiff, the amount of which is not now in question.
The case is submitted on briefs without oral argument: and the exceptions argued include the denial of the motions to nonsuit and direct, certain rulings on evidence, one instruction in the charge, and four requests to charge refused.
Passing minor details, which will be considered later when relevant to the discussion, the general situation at the time of the accident was this: the car float was to be "taken out of Bridge, Jersey City, to 149th Street, Harlem River." Deceased was put aboard the float, he cast off the mooring lines, a bow line from the tug was made fast to the outer end of the float, the tug backed out into the river pulling the float after it, the bow line was cast off, and the tug ranged up alongside the float about amidships, the starboard side of the tug toward the port side of the float. For towing, three lines were required: the "strap" leading aft from the bow of the tug to a pair of bitts on the float: the "backing line" from the side bitt of the tug to bitts on the float: and the "stern line" from the stern of the tug leading aft to bitts on the float. All three lines were in place: but the captain ordered the head line (a five-inch hawser, about one and three-quarter inches in diameter) to be doubled. Stahlin, the deceased, was on the float, in a narrow space between a freight car on the rails and the edge of the float. His right ...