
    Patterson v. Cleveland Cliffs Iron Co. et al.
    (Decided November 24, 1930.)
    
      Messrs. Newcomb, Newcomb S Nord, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, for defendants in error.
   Levine, J.

The parties stand here in the same position in which they stood in the common pleas court. Plaintiff, Walter Patterson, entered suit against the defendants for personal injuries alleged to have been sustained by him by reason of the negligence of the defendants. At the conclusion of plaintiff’s evidence the trial court directed, a verdict in favor of the defendants, and rendered judgment in their favor.

The plaintiff proceeded under the Act of June 5, 1920, known as the Jones Act (41 Stats, at L., Pt. 1, c. 250, page 988). Section 33 of that act, 41 Stats, at L., 1007 (Title 46, Section 688, U. S. Code), amended Section 20 of the Act of March 4, 1915, to read as follows:

“Sec. 20. That 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 employees shall apply; and in 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 employees shall he applicable. Jurisdiction in such actions shall he under the court of the district in which the defendant employer resides or in which his principal office is located.”

This enactment provides for injured seamen the right to compensation when such injuries are due to the negligence of their employers, or their agents or servants, just as the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, IT. S. Code) provides this right to injured railway employees.

It appears that the plaintiff was employed as a chief engineer of a vessel known as the Tosemite, and was in charge of the boiler and engine room. The injuries he sustained were caused when he fell from the top of the engine and rolled to the floor.

The pleadings and the evidence contain a description of the three vertical cylinders in the engine room, which ran longitudinally with the steamer and were located at the lower end of a large air space or ventilating shaft known as the compound room. The tops of the cylinders were about eight and a half feet above the floor and were of different sizes. The after cylinder, known as the low pressure cylinder, had a diameter of 42 inches; the middle one, called the intermediate, had a diameter of 29 inches; and the forward cylinder, known as the high pressure cylinder, had a diameter of 18 inches.

Above the cylinders was a clothes line, where certain of the seamen hung their clothes, when cleaned, to dry. On the day in question plaintiff had washed his clothes and had gone up the steel ladder to what he described as the passageway along the tops of the cylinders to hang up and dry them. "While the plaintiff was standing on top of the high-pressure cylinders hanging clothes upon the line, he attempted to steady himself, as the steamer rolled, and he claims to have tripped over a relief valve which caused him to roll down to the engine room grating some eight or nine feet, as a result of which he was injured.

While the petition sets forth three specifications of negligence, by admission of counsel we are concerned with but one, which is specification number two, as follows:

“Second — In that defendants had negligently failed to properly protect the ways, works and passageway and had negligently failed to provide sufficient and proper guards and supports and had negligently failed to warn or inform the plaintiff of the dangerous, unsafe and insecure condition existing therein, well knowing that said relief valve projected up above the top of said passageway in the middle of said high pressure cylinder, and that should this plaintiff, while in the performance of his regular duties, be caused to trip upon the same, he would be wholly unable to save himself from a fall and consequent serious injuries.”

In his evidence the plaintiff maintained that the relief valve over which he tripped was in the center of what he describes as the passageway; that he was not conscious of the existence of the valve; that he, at no time, received any warning informing him of the dangerous, unsafe, and insecure condition therein existing.

Our first consideration must be addressed to the question of negligence. Were the defendants guilty of any breach of duty? It cannot be claimed that the relief valve was structurally defective, nor can any negligence be charged to defendants for the manner and way in which the valve was constructed. The owner had the undoubted right to place the valve where he found it convenient. If any negligence was chargeable to defendants, it would be because the placing of the valve where it was situated created a dangerous, unsafe, and insecure condition, and that it thereby became the duty of the owners to warn the plaintiff of its existence.

At the time of the injury the plaintiff was acting in the capacity of chief engineer of the boiler and engine room, and was so acting for a period of three weeks preceding the injury, and was therefore in sole control of the same. There is no statutory provision requiring the owner of the vessel to warn the engineer and other men working in the engine and boiler room of the existence of the relief valve. If there was any duty at all devolving upon defendants, it would be the common-law duty which rests upon all persons to observe ordinary care under the circumstances.

Under the particular circumstances we are of the opinion that no duty devolved upon defendants to warn the chief engineer of the existence of the relief valve.

It seems to us that defendants, the owners of the vessel, had a right to assume that the chief engineer, whose duty it is to exercise control in the engine and boiler room, which is his particular domain, would familiarize himself with everything there, including the existence of the relief valve. Judging the duty of the owners by the standard of care which is usually observed by persons of ordinary prudence, it cannot be disputed that under the particular circumstances the owners were justified in not warning the engineer of the existence of the relief valve.

It will be observed that the relief valve was not in any way concealed or hidden. It was apparent to the naked eye, and therefore obvious.

The owners are under no duty to give warning of that which is obvious or apparent, particularly to the man acting as chief engineer in sole control of the engine and boiler room.

A careful reading of plaintiff’s evidence, to say the least, renders extremely doubtful the real cause of the plaintiff’s fall. Plaintiff stated that the boat took a sudden roll; that he reached out for something to grasp and landed on the floor; that then he does not remember anything else until he awoke to a realization of the fact that somebody was dressing his head. It is true that later in his testimony he stated that he tripped over a relief valve, but taking the two statements together, and the suddenness with which it all happened, it does appear that the fall quickly followed the sudden roll of the vessel. The statement that he does not remember anything else, that the first thing he remembers is when somebody was dressing his head, is a perfectly natural statement under the circumstances. The statement which followed, that he tripped over .a relief valve, seems to us more a matter of guess than a matter of knowledge.

We are, however, not desirous to invade the province of the jury, in passing on the question of fact, but merely desire to point out the weakness in the plaintiff’s narrative.

It is quite clear to us that the specification of negligence upon which the plaintiff relies, namely, the failure of defendants to give warning, cannot be made the basis of recovery, as under the circumstances the owner was under no duty to give such warning to the chief engineer, who was in sole control of the engine and boiler room.

Assuming for the sake of argument that there was a duty upon the owner to give warning of the existence of the relief valve, we are of the opinion that the plaintiff assumed the risk incidental to his employment j that under the circumstances related in the evidence the existence of the relief valve was an obvious risk, which, under the Federal Employer’s Liability Act (Title 45, Sections-51 to 59, U. S. Code), the employee assumes.

“Obvious” is that which is readily perceived by the eye. The obvious dangers of an employment are those which are apparent. They are the apparent risks of the work. They are the risks which are apparent in the exercise of ordinary observation and which are disclosed by the use -of the eyes and other senses. If a servant fails to observe that which is obvious, and suffers thereby, he cannot charge the consequences on his master. The risks so taken are impliedly assumed by him. See Dillenberger v. Weingartner, 64 N. J. Law, 292, 45 A., 638.

"We find no error in the judgment of the common pleas court, and the same will therefore be affirmed.

Judgment affirmed.

Vickery, P. J., concurs.

Cline, J., not participating.  