Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of nonsuit entered in a suit by the plaintiff to recover damages for the death of her husband alleged to have been caused by the negligence of the defendant. The accident occurred on a dark night in the North River near Hoboken, N.J. The decedent, Harold Lapp, was employed as a seaman by the defendant and his duties were in connection with the transfer, by means of a tug, of carfloats of the defendant from one dock to another. On the night in question, the decedent was acting mate on the tug and the service to be performed by the tug was to push a car-float loaded with cars into a slip and then to pull out another car-float also loaded with cars, which was to be towed to another slip.
There was testimony showing that Lapp went aboard the float, which was to be taken out, for the purpose of seeing that the lines tying it up to the dock were cast off before the tug commenced to back out with the float. The tug was made fast at its bow to the outgoing float and, after the float had started to move, a scream was heard and, when search was made, the decedent's cap was found floating in the water and later his dead body was recovered.
There was proof, under objection, of a custom among the employees of the defendant that the tug should not start to pull upon the outgoing float until the mate (in this instance, Lapp) on board the outgoing float, after the lines attaching the float to the dock had been thrown off, gave a signal by calling to those on the tug, "She is all gone," and by blowing two whistles, thereby indicating that the float had been loosed and was ready to be moved.
As the plaintiff's case developed at the trial, the only ground set up in the complaint charging negligence on the part of the defendant, supported by the evidence, was violation of the custom in that the float was moved by the tug without first receiving a signal or other notice from Lapp that it was safe and proper to shift or move it.
The testimony of the plaintiff's witness Ryan, an employee of the defendant, was to the effect that he was on duty on the float lying to the right of the one that was to be pulled out; that his duty was to take a line and stand on the float until the tug came back; that, while he was doing this, Lapp was on the float which was to be pulled out. He testified that the float started to come back, got about thirty feet back toward the river, out from the shore.
"It got about thirty feet back and I heard a scream and the float stopped, and I started to walk up toward the tug. * * *
The corner of the float hit something going out and give like a lurch, like when two boats come together, they banged together going out, shoved the float.
Q. Now, was that before you heard the scream or after you heard the scream? A. Well, it hit several times before I heard the scream.
Q. And what sort of a lurch was it, a slight lurch or a heavy lurch? A. Heavy."
The trial judge, after considerable discussion, sustained an objection to proof of the custom, in view of the testimony of the witness that the float was moving back and had already moved about thirty feet when the scream was heard.
It appears from the record that the attorney for the plaintiff, during recess of the court, asked the witness about the length of time that elapsed between the time the float left the dock and the time of the scream, and that the witness voluntarily stated to him that he had been misunderstood about the thirty feet, and that what ...