Brown v. Sennett

McKee, J. — The plaintiffs in the action in hand are the widow and children of John Brown, deceased, and they sue the defendant to recover damages for the commission of a wrongful act, or negligence, by him, which it is alleged caused the death of the deceased.

The case was tried by the court without a jury. At the conclusion of the evidence given for the plaintiffs, [227]there was a motion made for a nonsuit, which was granted; and afterward a motion for a new trial, made on a statement of the case, was denied; and from the judgment of nonsuit and the order denying the motion the plaintiffs have appealed.

The statement of the case shows that the defendant was a stevedore, who in January, 1881, contracted to unload the British ship Glengarry, then lying at Pacific Street wharf, in San Francisco, with a cargo of coal. For the performance of his contract he provided himself with a stationary engine, with the usual gear and apparatus for hoisting the coal from the hold and dumping it into a hopper or screen on the wharf; and employed the requisite number of men to serve in the positions necessary for discharging.

The machinery consisted of a steam-engine located on the wharf; and the apparatus consisted of four coal tubs or buckets, each of sufficient size to hold about a thousand pounds of coal, with a hoisting-gear on each; and the hoisting-gear was attached by a block and pulleys to a pennant or wire rope, so stretched from the main-topmast to the foremast as to fix the point of attachment directly over the hatch.

There were twelve or thirteen men employed. One acted as foreman, who had in his position on the deck of the ship control and direction of the men and of the work; another as engineer, whose position was at the hoisting-engine on the wharf. Three, including the foreman, were stationed on deck near the hold, one of them in charge of a line whereby he controlled the tub as it was hoisted from the hold until it cleared the hatch; another to work a trip-line, fastened at the bottom and center of the tub, by which, when the tub was hoisted to the hopper, the coal was dumped from the tub into the hopper; and another ‘in charge of a line by which the emptied tub was controlled and returned through the hatch to the floor of the ship. To fill or refill the tubs, [228]