Southern Ry. Co. v. Colonna (64 F.2d 237, 1933)

SOPER, Circuit Judge.

This ease was before this court on a prior occasion as Southern Railway Company v. Hermans, 44 F.(2d) 366. It involves the claim of the estate of Leo Antone Hermans, deceased, to recover damages for his death following injuries received by him as a deckhand on the defendant's tug or steamer Memphis on September 7, 1920, in the harbor of Norfolk, Va., when ho was crushed between the tug and a barge which was being taken in tow. The deckhand boarded the barge and was walking forward on a narrow walkway alongside the house on the barge, carrying a towing line, while the tug was coming up behind him, so that the two vessels might assume a position side by side and proceed to their destination. We hold (1) that there was evidence of negligence on the part of the tug in the performance of the maneuver, because there was no lookout on hoard to watch out for the safety of; the deckhand while engaged in the duty of carrying the line forward on the tug, although the tug was so constructed that the master in the pilot house could not see the deckhand on the barge as the vessels came together; and (2.) that since the injured man had taken part many times in similar maneuvers without a lookout, he assumed the risk involved in the defendant’s negligence, unless the tng approached the barg-e on this occasion in such an unusual way that the danger involved was not obvious to him. Tlie angle of approach was such, that he was caught between the house on the barge and two projecting guards attached longitudinally to the hull of the tug and extending, by reason of the rake or lift of the bow, to a higher point at the point of contact ten feet aft of the bow than they reached amidships. There was some evidence that this was not the usual manner in which the vessels made contact, and we held that the attention of the jury should have been specifically directed to this point so that they might determine whether the danger was so apparent to the injured man that there could be no recovery in spite of the tug’s neglect.

We were able to mle upon the other questions involved in the case, but since this question was one of fact, it was necessary that it be submitted to the jury and the judgment was therefore reversed and the ease sent back for a new trial. We said: “The only open question left for the jury to decide, is whether the approach of the tug at such an angle to the barge that the guards on the tug near-the bow were presented at a point so high as to reach over the deck and come up against the house qf the barge, constituted a circumstance and a danger so unusual that it would be unreasonable to conclude that it was obvious to the deceased. These matters we think should be submitted to the jury at a new trial of the ease.” The mandate directed that the District Court set aside the vqrdiet and grant a new trial m accordance with the opinion of the court.

After the case reached the District Court, the plaintiff, over the objection of the defendant, was granted leave to amend the declaration by adding an additional count and an additional bill of particulars, whereby new allegations supporting the charge of neglect on the part of the defendant were introduced into the case. It was charg-ed that the deckhand was injured without negligence on his part through the failure of the officers and crew of the tug to observe an existing custom or usage to exercise due care to look out for his safety while in the performance of his duties. The amendment was made to furnish a basis for testimony tending to show that on prior occasions, when similar maneuvers were performed, the tug maintained a lookout as charged in the new count of the deela-ration. The appellant now makes the point that the trial court erred in permitting the plaintiff to file an amended declaration, contending that by the opinion and mandate of this court, the new trial should have been confined to the one question as to whether the angle of approach of the vessels was so unusual as to constitute a danger of which the injured man was not aware.

There was no error on the part of the District Court in this respect and no misunderstanding on its part of the ruling or mandate of this court. It was not our purpose to restrict the scope of the new trial so as to forbid the presentation of new evidence, if any should be discovered. It is true that it is stated in the former opinion that there was only one question that was open for the jury, but this must be understood as having^been directed to the state of the record before us rather than as an announcement that the Pai^es sll01?ld not be Permitted to follow the ^ual Poetice upon a new trial. The matter °f amendment was within the discretion of the trial court, 28 U. S. C. 777 (28 USCA § 777); and ^ere was no abuse of the discretion m tlus ease smee ^ new amendment was ger“•ane to tlie fenei^ clialFe negligence on P^ of defendant and gave notice of ^ ,new eyld<®ce wlueIx lfc was the mtention ^ie plaintiff to produce. The amendment was made and the bill of particulars of the evidence was presented thirty ^ days before beginning of the second trial. The defen