
    Arthur Scarlett, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    First Department,
    May 7, 1915.
    Master and servant — negligence — Federal Employers’ Liability Act — interstate commerce — injury to captain of barge by hawser.
    Where, in an action brought under the Federal Employers’ Liability Act by the captain of a barge, to recover for injuries sustained while employed by the defendant in interstate commerce, it appeared that while the barge on which the plaintiff, a skilled and competent seaman, was employed was being moved by a tug to a pier where it was to be unloaded, the foreman on the pier notified him that the barge would stop at a certain gangway, but thereafter, without notice to him, the captain of the tugboat was notified to proceed to the next gangway; that while the plaintiff was paying out a hawser which he had attached to the pier, a coil of it caught around his leg and he was thereby injured, and that the failure of the dock foreman to give notice to the plaintiff of the change in orders was the only negligence claimed, the complaint should have been dismissed. This, because there was no connection between the failure to notify the plaintiff of the change of directions to the captain of the tug and the manipulation of the line, and the getting it caught around his leg, and because there was no negligence of any employee of the defendant contributing to the accident.
    
      Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of January, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 26th day of January, 1915, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederic W. Thomson of counsel [F. W. Thomson and W. S. Jenney, attorneys], for the appellant.
    
      Joseph A. Shay, for the respondent.
   Clarke, J.:

This action was brought under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, § 1) which provides: ‘ That every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * "" resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,” etc.

The plaintiff was thirty-five years of age, a married man. He had been a sailor all his life. He said: I have worked on everything, sir, from a tugboat to a steamboat, or a yacht, or a schooner, or a brigantine, or a bark or any kind of vessel that you wish to mention.” He had been working about the harbor twelve years. He had been employed as captain of a barge by the New York Central and Hudson River Railroad Company for seven years; he had been employed by the defendant for five years. He was captain of Barge No. 518. This boat was one hundred and thirteen feet long, with a freighthouse. On top of this in the middle of the barge was his cabin. The forward door on his freighthouse was twenty-nine feet from the bow of the barge, and the distance between his doors was thirty-seven feet. The barge was thirty-two feet beam. It had no power, but at the time of the accident was lashed to a tug which was one hundred arid twenty or one hundred and thirty feet long and thirty foot, beam, both boats under the control of the captain of the tug. The two boats were on their way from Pier 4 of the Bush docks in Brooklyn to Pier 7 at Hoboken, carrying freight consisting of two carloads of sardines and fish which were billed to Duluth and St. Paul, Minn. They were also carrying a carload of windmills consigned to Natal. It is conceded defendant is a common carrier engaged in interstate commerce and that plaintiff was injured while employed in such commerce. The pier was seven hundred feet long and about sixty feet wide and was covered.' It had seven gangways which were ninety-two feet apart, with the exception of No. 2 and No. 3 gangways which were fifty-one feet apart. Gangway No. 1 was the gangway nearest to the New Jersey shore. There was a stringpiece on the outside of the pier upon which were cleats for the purpose of making fast the lines. It was about three-thirty o’clock in the afternoon, slack water at low tide and no wind. When the two boats were about one hundred feet away from the pier some one on the end of the pier shouted “2 gangway,” and thereupon the tugboat gave two toots of the whistle indicating that the barge should he tied up at No. 2 gangway. They pulled in on the south side of the pier, and the barge was between the tugboat and the pier.

Plaintiff testified that he heard the tug captain blow two toots, when he was in the cabin on top of the barge getting his receipts for the fish, and that two toots indicated that the captain of the tug had received orders to make No. 2 gangway; that when he came out of the cabin, the captain of the tug in response to his question said it was 2 gangway; that he passed along on the outside of his boat towards the aft end; that just as he was going along about 3 or 4 gangway on the pier Mike Kenny, the foreman on the pier, said to him, “ Cap, we will make the forward door of your boat at 2 gangway; ” that he said, “ All right, sir; ” that he went aft to get his line clear; that to make his forward door stop at 2 gangway he had to get his line on a cleat the other side of 3 gangway; that he said to Mike Kenny, “ What do you say, Mike, line out here?” He said, “Yes, Cap; get your line out on that cleat,” and that Kenny said to the Italian that was standing inside of 3 gangway, “ Get that Captain’s line and put it on that cleat; ” that the plaintiff threw the line partly over the cleat, and the Italian put it over the other half of the cleat. At that time his boat was about ten to twenty feet from that cleat, just far enough for him to throw a line. The barge at that time was sliding alongside of the pier. He thought that the barge seemed to go ahead faster, as though the engine had been kicked ahead; that he thought his line was not strong enough to hold the big tug that was alongside of her or to stop her with one single part, so he took a bight and threw the bight just as she was passing the cleat, then took a turn around the bitt on the barge and was tricking the line out; that he said to the pier foreman, “ Mike, what do you say, give me a chance. She is going along like the devil;” that Kenny paid no regard to him; that he thought that if he had to stop at 2 gangway he had to get a turn. “Then here I am in this position. My right foot would have to be up off the ground for me to see past the side of my freigbthouse up on the barge, the top part of the boat. * * * To look around the edge of the freight-house I had to lift my body in that position and keep the line here. As I asked him or shouted to him to give me a chance, that she was going very fast, he never answered me. I thought to myself the only thing for me to do is to catch her myself. Turning myself in this position to get a turn or to catch the line to bring myself up into my proper position, just as I turned, this line of mine that was coiled up or laying around here on the outside of the bitt clear of my legs, turned and formed a kink too quick for me to pull my foot clear. It turned over in this manner (indicating) * * * My rope was coiled up at that time. * * * This formed a kink * * * and it caught on my foot with that line, sir, and took my foot off against the bitt on the barge.”

He did not know at the time that the orders were changed; that the boat was to be stopped at gangway 1 rather than gangway 2; that if he had had orders to stop at 1, he would have put his line on the middle cleat between 2 and 3 gangways, about eighty feet further in to the Jersey shore from where he did put his line. This line was a five-inch hawser.

His leg was amputated at the hospital about six inches below the knee. It was conceded that the man on the pier had given the captain to understand that he should unload his barge at No. 2 door; that when the boat got near enough to see what freight was on it the directions to the captain of the tug .were changed. In some way he was told to go to No. 1 gangway. There was no other evidence. At the close of plaintiff’s case defendant moved to dismiss, and to the denial of its motion excepted. It put in no defense but rested, and again moved to dismiss, which being denied it again excepted.

The negligence claimed is that the dock foreman was negligent in failing to give notice to the plaintiff of this change of orders. The court charged that there was no negligence on the part of the tugboat captain; that there was no complaint of defective appliances or lack of skill of co-employees; that the evidence shows conclusively that the plaintiff was injured by the natural movement of a rope which was a sufficient and proper rope, and that at the time of the accident the plaintiff had sole custody of the rope and sole control of it.

We, therefore, have a case where a skilled and competent seaman, who had spent all his life upon the water, handling his own line, which he had coiled himself, so managed himself that while he was paying out this hawser, three parts of it connected between the cleat on the pier and the bitt on the boat, a coil of it caught around his leg. This could not have happened if he had kept his foot on the deck. The sole negligence claimed is the change of directions indicated to the captain of the tug that the barge should go on to No. 1 gangway instead of stopping at No. 2; that is, ninety-two feet further inshore. I cannot see what connection this had with the accident. If the barge had gone on further the hawser would still have had to have been thrown, placed around the cleat,- taken around the bitt and paid out, all within the control of the plaintiff, and the kink would just as likely have happened in coming to a stop at gangway No. 1 as it did at No. 2. There is no causal connection between the failure to notify Scarlett, if there was any duty to notify him of the change of directions to the captain of the tug, and the manipulation of the line and the getting it caught around his leg. The accident occurred on his own boat, with his own hawser, which he was himself handling from a coil which he had made himself. There was no negligence of any employee of the defendant which caused the accident or contributed to it. Therefore, it seems to me that no case was made out and that the motion to dismiss should have been granted

The judgment and order appealed from should be reversed, and the complaint dismissed, with costs to the appellant.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs.  