This consisted of two boards about 8 feet long spanning the top of the cabs of the two locomotives. One board admittedly was of sufficient strength to hold a person. The other was 7 1/4 inches in width and 3/4 inch in thickness, and it was this latter board which cracked under the weight of the libellant and precipitated him to the bottom of the hold. The testimony does not disclose and I am unable to determine who actually placed these two boards as a walkway. There are two possibilities in this situation, both of which result in liability on the part of respondent. One, that it was placed there by a member of the ship's crew in which event it became a ship's appliance, even though temporary, and being unsafe and unsuited for the purpose for which it was to be used made the ship unseaworthy. If it was not placed there by the ship's crew but was placed there by some other person working there, then the ship failed to provide a safe walkway and a safe place to work. Under the circumstances of this case that would spell out negligence. The ship has a nondelegable duty of providing a safe place to work. It cannot avoid the consequences of the improper performance by someone else of the duty which it was required to perform. This leads to a discussion of the contention strongly advanced by the respondent that libellant was guilty of contributory negligence.
There are several factors militating against a finding of contributory negligence. First, the libellant had a right to assume that the walkway was placed there by the ship for purposes of passage for those working in the hold. Secondly, a contributing factor was the dimness of the light which was also the ship's responsibility. There was not sufficient light for libellant to have been able to observe immediately the nature of the board over which he was about to travel. Under the circumstances respondent has not shown that the libellant was guilty of negligence in failing to test the board before walking across it.
The contention of the respondent that the libellant herein should have descended the ladder of the cab and in the darkness walked between the locomotives on the floor of the hold does not impress me. The testimony discloses that on the floor of the hold there was danger from loose dunnage, greasy skids and running strands of lashing from the locomotives to the sides of the ship as well as an almost total lack of light. It is clear from the evidence that using the avenue suggested by respondent would involve much more serious danger than the method used by this libellant in walking over the tops of the locomotives by means of walkways which had all the appearances of being normal appurtenances of the ship.
Conclusions of Law
1. The Court has jurisdiction over the parties and subject matter.
2. The respondent, Belships Company, Ltd., Skibs, A/S, Christen Smith & Co., owned and operated the S.S. 'beljeanne' and owed a duty to libellant, who was employed aboard the vessel to secure cargo, to provide him with a safe place in which to work.
3. This duty on the part of the respondent was continuing and could not be delegated or contracted away.
4. The failure to provide proper and adequate staging, illumination, and warning of the presence of the unsafe board across the cabs of the locomotives constituted negligence on the part of the said respondent, which was the proximate cause of the libellant's injuries.
5. Libellant was not guilty of contributory negligence.
6. Libellant is entitled to an award of $ 35,000 to compensate him for his past loss of earnings, future impairment of his earning capacity, and past, present and future pain and suffering.
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