assigned by their employer, Thomas A. Winters Ship Engineering Company, to clean the No. 4 hold of the ship 'Victoria County.' In order to sweep off the beams supporting the deck above them, they required the use of a ladder to reach the under side of the beams. While standing at the bottom of the hold, they called to other employees of Thomas A. Winters Ship Engineering Company who were working on the main deck to furnish them with a ladder. The winchman, a fellow employee, lowered to them an extension ladder consisting of two sections with an overall or extended length of 40 feet. Libellant and 'Pork Chop' extended the ladder, 'Pork Chop' mounted the ladder to clean the beams and libellant remained below on the deck of the hold to steady the ladder. When it became necessary to move the ladder, 'Pork Chop' descended to the deck of the hold and the two men together shifted the ladder while it was still in an extended position. It was during this moving operation that the upper section of the ladder dropped and the catch or safety jammed libellant's left thumb against the rung of the lower section. Libellant placed the time of the accident at various times, i.e., 'late part of the evening,' 'past dinnertime,' 'it was after five o'clock,' and it was 'getting dark.' He also insisted that there was a large accumulation of coal dirt in the hold and that when the beams were swept the dust was so thick he could not see. He admitted that the hatches were all open and that the daylight penetrated through to the hold, but that the day was not too bright. He denied that there were any artificial lights lit in the hold. In regard to the lights, there was convincing testimony that artificial lights were lit in the corners of the hold.
As to the nature of the dirt in the hold, it is interesting to note that the invoice submitted by Winters covered the 'sweeping, wiping, wire-brushing, scraping and chipping frozen iron ore.' This is confirmatory of other evidence in the case that the material being removed from the beams in the hold consisted of iron ore dirt and not coal dust.
I am convinced that the accident occurred in the very early afternoon. Libellant's foreman reported he first knew of it at 2:00 o'clock P.M.; libellant testified that he arrived at the dispensary about one and one-half hours after the accident, and the dispensary records indicated he was there examined at 3:05 o'clock P.M.; the Chester Hospital records have him admitted there at 3:21 o'clock P.M.
Libellant contends he 'hollered up' to the winchman three times for lights. Whether or not he did so, there is absolutely no testimony that the winchman, a fellow employee of Winters, ever relayed those requests to any one of the ship's personnel, but in considering all the testimony, it is clear that the hold was adequately lit for the operation which they were performing.
There is a vast difference between the facts of the Alaska Steamship case, supra, and the instant case. In the former the block in question broke. In this case I can find nothing wrong with the ladder. Consequently, so far as the ladder is concerned, I can find no element of unseaworthiness. Libellant bases his entire case on the fact that the catches or safeties, the purpose of which was to hold the extended portion of the ladder secure, slipped, as the result of which his thumb was caught. He repeatedly testified that the extension portion of the ladder came down first on his thumb and that he then slipped and went down with the ladder, that when the ladder came down, 'I had to fall right down with it.'
There was uncontradicted testimony that this ladder had been used on this operation from the time it started at the Port Richmond dock in Philadelphia, and was continued in use after the accident. Certainly, according to libellant's own testimony, the catches or safeties performed their proper functions when 'Pork Chop' was on the ladder. The accident did not happen until libellant and 'Pork Chop' were moving it. 'Pork Chop' was not called as a witness. If the libellant's thumb was injured as he claims by being caught in the catch or safety, then it must have been the result of the negligence or carelessness either of himself or his fellow employee (Winters' employee). Clearly, an improper use of a perfect piece of equipment by an employee of an independent contractor, which furnished the equipment, would not form the basis of a claim of unseaworthiness against the ship on which an accident occurred as the result of such improper usage.
I have found as a fact that under all of the evidence the lighting in the hold at the time of the accident was adequate.
Whether or not libellant slipped on the accumulation of dirt on the floor of the hold is immaterial, as according to libellant's testimony the fall had nothing to do with the injury. In no sense was the condition of the floor a contributing factor to the accident.
Nor, in my opinion, is there any basis for the application of the doctrine of res ipsa loquitur. It is fundamental that for this doctrine to apply the defendant must have had full management and control of the instrumentality which caused the injury.
The ship is not an insurer and even the sweeping coverage of the Alaska Steamship case is predicated on the element of unseaworthiness which in my opinion is totally and completely lacking in this case. I can reach no other conclusion than that this libellant suffered his injury through his own negligence and carelessness in the handling of a perfect piece of equipment furnished by his employer, the independent contractor, and equipped with adequate safety devices which he did not use.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject matter.
2. The libellant's evidence was insufficient in law to make out a prima facie case of liability against the shipowner.
3. The sole, direct and proximate cause of the libellant's injury as his own negligence.
A decree may be submitted in accordance with the foregoing Findings of Fact and Conclusions of Law.