Therefore, we hold that the route toward Pier 1 which crossed over the stern line and which was taken by the decedent was another safe route because there is nothing inherently dangerous about it and in all probability he had permission to use it. It was the defendant's voluntary act in permitting the alternate slacking and tautening of the stern line and its failure to provide a safe place in which to work and in failing to post a lookout which made the route crossing over the stern line unsafe, and it cannot now defend on the ground that it had no reason to anticipate the presence of the deceased. There is a further reason why Joseph Cicarello's presence should have been anticipated. Except for the intervening negligence of the defendant in failing to provide a safe place in which to work the decedent had the option of proceeding along two safe courses, one in the direction of Pier 2 and the other in the direction of Pier 1 which necessarily crossed over the stern line. The course which the deceased traveled was the more practicable course as the distance from the dredge to Pier 1 was about 25 feet and the distance to Pier 2 was about 70 feet.
The defendant contends that the unsafe place in which to work constituted an 'obvious danger' and that the deceased knew or should have known of the danger and that because he took this route which necessarily crossed over the stern line he was thereby chargeable with contributory negligence. Under the general maritime law and the Jones Act the doctrine of 'comparative negligence' obtains. Contributory negligence is not a bar to recovery but it can be invoked for the purpose of mitigating damages. The Seeandbee, 6 Cir., 102 F.2d 577. Examination of the record discloses that the deceased had no actual knowledge of the danger. The sole question is whether or not the danger is so obvious that knowledge thereof may be imputed to the decedent. In determining this question the nature and definition of 'obvious danger' must be applied to several facts of the instant case. A danger is obvious if it is manifest as to the sense of observation, open, and readily discernible. One of the duties of the decedent was to row members of the crew and others to and from the shore. In connection with this duty, he frequently descended the ladder which was located in the middle of the stern. In descending the ladder the stern line which was hanging from the aft port cleat of the dredge must have been apparent to the decedent for it was located slightly to the left of the ladder. Also in rowing to and from shore the stern line must have been evident to the decedent for it is presumed that a person in addition to observing the view in his direct line of vision also observes the view on either side of him. However, the fact that the stern line was obvious to the decedent is insufficient to charge him with contributory negligence. Standing alone, there is nothing inherently or obviously dangerous about a stern line which is hanging from the stern of a ship and submerged in water. The real danger was the periodic tautening of the stern line and we hold that this condition was not obvious, and knowledge cannot be imputed to the decedent. This holding is based on several facts and circumstances. The stern line was placed on the afternoon of the accident and the decedent had no reason to suspect that the line would rise out of the water and become taut with the motion of the dredge. The unfamiliarity of the decedent with dredging operations is another important factor. The evidence shows that Joseph Cicarello for four years prior to his employment on the dredge Baltic had been employed as a member of the crew of the U.S. Army Transport Washington in the capacity of second cook, and in that capacity he could not have had many opportunities to gain experience concerning a dredge which is a particular type of ship. Finally, the testimony reveals that the spuds used were inadequate to secure the dredge to the river bed and this caused the drifting and swinging about of the dredge and the slackening and tautening of the manila line. It is difficult to perceive how knowledge of this situation can be imputed to the decedent particularly in view of the latter's inexperience with dredges and dredging operations.
We feel that the above discussion involving contributory negligence would be incomplete if we failed to make mention of the presumption which arises when an accident occurs and a party dies. The presumption is that a person dying in an accident is presumed to have used due care and we think that the presumption is applicable in this case. The evidence indicates that after the boat capsized the decedent disappeared and was not seen alive thereafter. The only reasonable conclusion to be drawn is that death was instantaneous. Conscious pain, substantially contemporaneous with death affords no basis for a separate award of damages. St. Louis, I.M. & S.R. Co., v. Craft, 237 U.S. 648, 35 S. Ct. 704, 59 L. Ed. 1160.
At the time of the trial Joseph Cicarello's mother and father were 58 and 61 years of age respectively and the mother had a life expectancy of approximately 15 years. The decedent prior to his death enjoyed good health, and it can reasonably be expected that he would have lived 30 years longer. He contributed to the support of his parents in varying amounts, ranging from $ 10 to $ 25 monthly. Taking these facts into consideration together with the elements of present worth of expected future contributions and the pecuniary loss sustained by the parents up to the time of trial we are of the opinion that the pecuniary loss to the parents is, and it is hereby fixed at, the aggregate sum of $ 3,000.
Conclusions of Law
The Court makes the following conclusions of law on the findings of fact and discussion:
1. Defendant had the duty to provide the decedent with a reasonably safe place in which to work. The defendant should have anticipated the presence of the decedent at the point where the accident occurred and should have warned him of the peril to which he was subjected at the time of the accident.
2. Defendant was negligent in failing to provide decedent with a reasonably safe place in which to work in failing to warn decedent that the manila line was about to become taut and rise above the surface of the water, and in failing to equip the dredge Baltic with spuds sufficiently long to enable them to obtain a firm footing upon the bed of the river.
3. The failure of the defendant to furnish a safe place in which to work was the proximate cause of Joseph Cicarello's death.
4. The danger which was caused by the alternate slackening and tautening of the manila line was not obvious and the decedent cannot be charged with contributory negligence for having taken the route which necessarily crossed over the manila line.
5. The negligence of the defendant was the proximate cause of Joseph Cicarello's death and defendant is therefore liable for the pecuniary loss suffered by the parents of the deceased as a result of his death.
An order may be entered in conformity with this opinion.
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