
    ELFORD v. SMITH TRANSP. CO.
    No. 6001.
    Circuit Court of Appeals, Ninth Circuit.
    May 26, 1930
    Lord & Moulton, of Portland, Or., for appellant.
    Senn & Recfcen 0f Portland, Or., for appellee_
    Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges,
   RUDKIN, Circuit Judge,

This was an aetion to recover damages foj, personal injuries. Tlie plaintiff, at the time o£ receiving the injuries complained of, wag ^ tll0 loy of tho defendant on a an(j was assisting another employee -n atta(jM a llead lin0 from the, bow of the towboat to a raft of j inAhe Columbia ^ WMe go e a d tll laintifl! passed ^ end q£ fte head line to a lo ,er 011 the ^ whon tbe lin0 wa3 attachfid to the raft by ^ loggep tll0 plaintiff procoeded to make the line fast to a cavil on the port side of the bow of the towboat by taking several j;Ums 0f the iine around the cavil, in the form 0£ a figure eight. While so engaged, a bight fn the jine wrapped around the plaintiff’s f00t; causing the injuries for which a reeovery was bere sought. The negligence charged in the eomplaint was that the head line in use was old, worn, and defective, and that after tlie towboat was brought to a stop alongside the raft, and while the plaintiff was engaged in wrapping the head line around the cavil, the defendant, through its agents and servants, carelessly and negligently caused and permitted the vessel to be put in motion, thereby causing and permitting a strain to be thrown on tho line. At the close o£ ^be testimony the court below ruled that the evidence was not sufficient to sustain the charges of negligence contained in the comP^t and directed a verdict for the defend-ant- From the judgment on this verdict the plaintiff has appealed.

As already stated, but twoi grounds of negligence were set forth in the complaint: First, the use of a defective head line, and, second, the starting of the towboat forward wbilo the appellant was in the act of fastening the bead lino to the cavil. The head line in use at tho time of the accident had been ^ USG ^or a Period °£ about three months Prior thcreto ^ had been used several moníhs the accident and prior to the trial in tlie same manner and for the same purpose. The line was exhibited to the court and jmy and the court could discover no defeet therein. Furthermore, it is now coneeded by the appellant that the use of the head line at the time of the accident did not con-statute negligence. The utmost that is claimed is that greater care was required in its use because of kinks made in the line by turning it around the cavil and the strain on the line incident thereto.

Nor do we find any error in the ruling on the second ground of negligence. The appellant seems to contend that the court directed the verdict against him because of a slight variance between the allegations and proofs, in that the complaint averred that the towboat had been brought to a stop, whereas the proof showed that the boat was still drifting slowly. But such was not the basis of the decision. The court ruled, and we think properly, that .the testimony failed to show that the towboat was started forward at the time of the accident, or that the accident was caused thereby, so that there was an entire failure of. proof as to the negligence charged.

The judgment is affirmed.  