Opinion
No. 192.
February 2, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Doris Grunert, as administratrix of the estate of Walter Grunert, deceased, against Bush Terminal Company and another. Decree of dismissal, and libelant appeals.
Affirmed.
In Admiralty. From a decree of the District Court for the Eastern District of New York dismissing a libel to recover damages for the death of libelant's intestate while in the employ of Bush Terminal Company, the libelant appealed.
This libel was brought by the administratrix of the estate of Walter Grunert, who was drowned December 10, 1925, while engaged in the performance of his duties as a floatman in the employ of the respondent Bush Terminal Company, in attempting to comply with a direction given him by the mate of a tug owned by the Phœnix Transit Company, which was picking up a car float. Grunert was on the float. He had been instructed by his employer as to his work and had been told how to pass the end of a line back to a tug when it was doubled. He had been cautioned not to let tug captains get him excited, to be very careful, and that "one arm was for himself and one arm for the lines." He was also told to do what the tug captains told him to do.
Having been so instructed, Grunert was on the rail of the float helping the Phœnix Company's tug Nanuet take the Bush Company's loaded car float Bush No. 3 in tow at the Erie Float Bridges, Dock No. 2, Jersey City. The float had three tracks, and was loaded with seventeen cars. It had a rail outside the tracks from 10 to 15 inches high and about 2 feet wide. The overhand of the cars gave Grunert only about 10 inches of the width of the rail on which to stand. It was after dark in the evening.
The Nanuet first ran a head line from the stern of the tug to the middle bitt on the stern of the float. She then started the float back and rounded to so as to pick up the float starboard to starboard and tow it stern first. The head line on the tug was then shifted from the middle stern bitt on the float to the fourth or fifth cleat from the stern on the starboard side. It was to be used for the head line. A towing strap was put out from the forward towing bitt of the tug to the cleat just astern of the head line's cleat and a stern line made fast from the tug to the float. When all this had been done, the captain of the tug ordered his mate to double up the head line. It was a 5½-inch line with a 4½-foot eye over the cleat on the float. Although the tug and float were together, the stem of the tug was from 4 to 7 feet from the float, and the cleat over which the eye of the head line had been passed was some 3 or 4 feet forward of the stem of the tug.
When the mate was ordered to double the head line, he directed Grunert to throw the eye back to him on the tug. Grunert pulled in some slack around the horn of the cleat and then cast the eye to the tug. In doing so he did not hold on with one hand, lost his balance, fell overboard, and was drowned.
William F. Purdy, of New York City, for appellant.
Duncan Mount, of New York City (John A. McManus and Arthur C. Muller, Jr., both of New York City, of counsel), for appellee Bush Terminal Co.
James B. Henney, of New York City (Burt L. Rich, of Brooklyn, N Y, of counsel), for appellee Phœnix Transit Co.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff's intestate was working in a hazardous place on the narrow rail and knew the danger which was quite apparent. He was safe enough so long as he stayed on the rail, but the ever-present danger of falling off if he did not protect himself from doing so was obvious. He had been told to be careful and to use one hand to hold on. He was bound to do only what he could when following such instructions. When he received the order from the mate on the tug, no duty incumbent upon him required compliance except in so far as he could comply when doing his work in the way he had been told to do it. His instructions to obey orders from tugs were general; his instructions to look out for himself and hang on with one hand were specific. His employer had the right to have him do his work the way he had been told to do it. Grunert disregarded such instructions, and took a chance of falling when he used both hands to cast the eye to the tug. If it were impossible for him to cast it with one hand from where he was, all he had to do was to walk along the rail with it a few feet until he came to a point where the float and tug were near enough together to enable him to do it in safety with one hand. Assuming that his duty to his employer required him to obey this order from the mate, that duty did not require him to cast the eye in a dangerous manner and left him perfectly free to do it in whatever way he could, if at all, without more risk of falling than would be involved when he used one hand for his own safety. His choice of the manner was voluntary, in violation of his instructions from his employer, plainly dangerous, and the proximate cause of his death. Perhaps it would have been safer not to have doubled the line but to have tripled it, as the evidence indicated was often done by leaving the eye over the cleat and taking over slack enough to have the head line in three parts. The most that can be said is that both ways were used by tug captains. Not the method of attaching the head line but the failure of Grunert to protect himself with one hand while doing his work caused his death. While he was working in a dangerous situation, it was his duty to use care commensurate with the plain requirements of his own safety, especially since he had been cautioned to do so and been told by his employer how to do it. We cannot now consider what would have been the situation had he fallen without ignoring these cautionary instructions or been unable to comply with them.
On this record Grunert is shown to have adopted an unsafe way to do what he was told when he could and should have done it in a safe way, and neither respondent is liable for his heedlessness. Mississippi River Logging Co. v. Schneider (C.C.A.) 74 F. 195; Johns-Manville v. Pocker (C.C.A.) 26 F.2d 204; Morris v. Duluth, S.S. A. Ry. Co. (C.C.A.) 108 F. 747.
Decree affirmed.