The opinion of the court was delivered by: STEWART
This is an action under the Jones Act, 46 U.S.C.A. § 688, to recover damages for injuries alleged to have been sustained by the libellant, Buelah L. Neville, as the result of the negligence of the respondent. The case was tried by the Court without a jury, and upon all the evidence, we make the following
1. On June 9, 1950, the libellant, Buelah L. Neville, was employed by the respondent as a laundress on the motor vessel 'Trade Winds'.
2. The respondent is a corporation having an office for the transaction of business in the City of Pittsburgh, Pennsylvania.
4. The 'Trade Winds' was enroute upon the Ohio River with a tow of 14 barges on June 9, 1950, and at approximately 8:30 P.M. arrived in the vicinity of Lock No. 41, at or near Louisville, Kentucky.
5. By reason of the fact that at the time the 'Trade Winds' arrived in the vicinity of Lock No. 41, another vessel proceeding down the river was in the process of going through the locks, it was necessary for the 'Trade Winds' to wait for some time before entering the lock.
6. The Captain of the vessel, Lewis Enlow, who was at that time on duty as pilot, did not cause the vessel to be tied up to the shore or to the lock, but held the vessel in midstream by using enough power from the engines to counteract the current, thereby holding the vessel stationary in the river. That boat continued motionless in the river until the happening of the accident to the libellant Buelah, Neville. The boat did not strike any object and there was no jolt, jar or jerk to the boat which would have contributed to the accident hereinafter described.
7. The position of the boat was approximately 400 feet from the Kentucky shore and the head of the tow was approximately 200 feet below Sand Island. At the time of the accident, Captain Enlow had the boat's searchlights on, pointed toward Sand Island.
8. At approximately 9:20 that evening, the libellant, Buelah Neville, went to the galley, or kitchen, for the purpose of getting herself a cup of coffee. Notwithstanding that there were two pitchers filled with condensed milk (usually referred to in the testimony as cream) in an unlocked refrigerator in the dining room of the boat, Mrs. Neville proceeded to open a new can of milk or cream. Notwithstanding further that there were tow types of hand can openers in the cutlery drawer in the galley, one of which was capable of being used to punch a hole in a can of milk, and a larger can opener fastened to a table in the galley, also capable of being used to punch a hole in a can of milk, Mrs. Neville used a meat cleaver for this purpose.
9. One of the hand can openers was of the ordinary type, having a pointed knife-like blade with which holes could be punched in a milk can, and the other was a rotary type ordinarily used to remove the entire top of a can. In addition, fastened to the table, was a large can opener of the rotary type, likewise customarily used for removing the entire top of a can, but capable of being used to punch a hole in a milk can.
10. When libellant attempted to open the can, the cleaver slipped and severely cut the first two fingers of her left hand.
11. Mrs. Neville immediately went to the room of the cook, Gladys Grubbs, who took Mrs. Neville into her bathroom and put the bleeding hand under water. The cook then summoned the libellant's son, Raymond Neville, who was employed on the boat as a deck hand and was sleeping in his room at the time.
12. Donald Ivy, a striker on the boat, saw Mrs. Neville walking through the engine room holding her hand in a peculiar fashion. He noticed several drops of blood on the floor, so he followed her to the cook's room. Seeing the seriousness of the ...