Sadler v. Pennsylvania R. Co. (159 F.2d 784, 1947)

PARKER, Circuit Judge.

This is a suit under the Jones Act, 46 U.S.C.A. § 688, to recover damages for wrongful death. There was verdict and judgment for defendant and plaintiff has appealed. The decedent, William Carroll Sadler, was a cook on a barge of the defendant Pennsylvania Railroad Company and was drowned in the night time while the barge was tied up at the dock alongside another barge of the same defendant. Negligence was alleged in the mooring, lighting and equipment of the barges and in the efforts made to rescue the decedent. During the course of the trial the court struck out the evidence as to negligence in the mooring, lighting and equipment of the barges, refused a prayer for instructions with regard to the duty of the barge owner to have life saving equipment reasonably accessible and limited the consideration of the jury to negligence in the attempt at rescue. The only question presented by the appeal is the correctness of this limitation of the issues submitted to the jury.

The two barges were car floats of the defendant, approximately 350 feet in length. They were moored near together but not as close to each other or to the dock as was possible, and as a resalí they had drifted until they were three feet apart amidships and six to ten feet at their offshore ends. There was evidence that the guard rails surrounding them were rotten and broken in places and that they were so inadequately lighted that employees found it necessary to use flash lights in going about them on the night in question. In the crew’s quarters, which were from twenty to thirty feet above the deck amidships and were reached by ladders, there were life preservers, and on the main bridge of one of the barges, also twenty to thirty feet above the deck, there were some life rings; but no life equipment of any sort was on the decks, from which life saving operations would normally be conducted.

The theory of plaintiff is that decedent was going from one barge to the other, when in some way, because the targes had drifted apart, because of the defective condition of the guard rails, because of the defective lighting or because of the combination of all these things, he fell or was thrown between the barges into the water. No one saw him fall, but, when discovered, he was in the water between the barges about amidships, was calling for help and, by treading water, was managing to keep himself afloat. He continued to struggle and call for help for several minutes, during which a number of employees gathered around and attempted to rescue him. A heaving tine was found at the end of one of the barges and was thrown to him, but because it was too light the wind blew it away so that he was unable to grasp it. A heavier rope was then found and thrown to him, but by that time he was too far gone to help himself. One of the employees then very heroically descended between the barges and, with the aid of a boathook which had been brought from a nearby tug, lifted him from the water and to the deck. Efforts were made to resuscitate him but without avail.

We think that the trial judge was in error in limiting the jury’s consideration of negligence to what occurred in the attempt at rescue. While it is impossible to say with certainty what caused decedent to fall between the barges, it is a reasonable inference from the evidence that in attempting to go from one to the other h