#### SAVAGE v. NEW YORK, N. & H. S. S. CO., Limited (two cases).

(Circuit Court of Appeals, Second Circuit.

March 6, 1911).

Nos. 176, 177.

1. Shipping (§ 166*) — Liabilities op Owners of Vessels — Defective Condition of Vessej>-Evidence.

Where a structure on the promenade deck of a passenger vessel, consisting of a chain box extending on both port and starboard sides from deckhouse to rail, covering a necessary part of the steering gear, was common in vessels of the size and age of the vessel, and had long been well known on vessels used for passenger traffic, negligence of the owner could not be predicated on the construction of the vessel, though there was evidence that a sloping cover for the steering chain would have been less dangerous.

[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 166.*]

2. Shipping (§ 166*) — Liabilities of Owners of Vessels — Defective Condition of Vessel — Evidence.

Where a passenger came on board during daylight, and went to her stateroom, a few feet from- such an obstruction, and then left the stateroom, and went to the other side of the deck, near the corresponding obstruction, where she remained for some hours, the failure of the owner to warn the passenger of the obstruction was not actionable negligence,, and it was not liable for injuries sustained by her by stumbling over the. *779obstruction near her stateroom before 8 p. m. of a clear, mild day, when the sun set at about 7:30 p. m.

[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 166.*]

3. Husband and Wife (§ 209*) — Injuries to Wife — Action by Husband.

AYliere a wife may not maintain libel for personal injuries, her husband may not maintain a libel for expenses on account of the wife’s injuries and for the loss of consortium.

[Ed. Note. — For other cases, see Husband and AVife, Cent. Dig. § 768; Dec. Dig. | 209.*]

Appeals from the District Court of the United States for the Southern Disti'ict of New York.

Libels by Ella D. Savage for personal injuries, and by her husband, Minot J. Savage, for expenses on account of her injuries and loss of consortium, against the New York, Newfoundland & Halifax Steamship Company. From decrees for defendants in each action, libelant in each action appeals.

Affirmed.

The following is the opinion of Hough, District Judge:

On the 26th of Juno Mrs. Savage was a passenger on respondent’s steamship Rosalind, hound from New York to Halifax. AATiile the steamer was in Dong Island Sound, during calm weather, she fell upon the promenade deck, breaking both bones of one leg and simultaneously dislocating her ankle. At the time Airs. Savage was 64 years old, and. according to a physician who has testified in her behalf, in a neurasthenic condition. At the time and place of her fall, no one was in her immediate vicinity, and her efforts to obtain as. sistaneo were not immediately successful. To her (naturally) “it seemed a great while” before any one perceived her plight. She “should say” that she was “lying there five or ten minutes.’’ The time was almost certainly much less than this; but there was an appreciable period between her fall and the time when any one but herself knew she had fallen.

The suffering naturally attendant upon such injuries as above noted was aggravated by the impossibility of simultaneously setting the broken bones ■ffid reducing the dislocation of the ankle without anaesthetics; and although she seems to have been attended by a remarkably competent physician and surgeon, who happened to be a passenger on the Rosalind, he was unable to obtain any anaesthetic on board the ship. Tn result the necessary surgical operation was delayed until arrival in Halifax. This delay, and the age and condition of the patient, produced a long convalescence and, according to the nncontradicted evidence, permanent disability.

Speaking untedmienliy, the cause of this lamentable accident was a chain box extending on both port and starboard sides from deckhouse to rail, covering a necessary portion of the steering gear. On each side of the promenade deck, therefore, these chain boxes formed an obstruction more than half a foot high and about a foot wide, and extending as above noted across the deck. The only door into Airs. Savage's stateroom was within a few feet of the port chain box over which she fell. She had come on board during daylight, had gone to her stateroom, had come out therefrom, but had not noticed the chain box. She then went to the other side of the deck with her traveling companions. and there spent the rest of ¡he afternoon, apparently not noticing the corresponding chain box on that side of the vessel, although she must hare been sitting for hem's within a few feet of it.

it may bo noted that the principal libelant is a lady of intelligence, who has traveled much and is entirely accustomed to passenger life on steamers. After sunset of the day first mentioned (which, was the day of the beginning of the voyage), the libelant rose from her chair on the starboard side of the deck, saying that she would go to the other side of the vessel to see the “afterglow.'’ She passed front starboard to port aft of the deckhouse which contained her own stateroom, and ill walking forward on that portion of the *780promenade deck which exactly corresponded to the one she had just left she tripped and fell over the chain box, receiving injuries to recover for which this action is brought.

Much of the testimony adduced in the causes relates to the time when the injury was received. A number of passengers (who, of course, only knew of libelant's injuries after she had been discovered lying helpless on the deck) declare that it was dark. That is a matter of opinion as to which observers at the same instant of time might differ; but the following facts are shown by uncontradicted evidence: After Mrs. Savage was hurt, some period of time elapsed before she was discovered. Her injury was first made known to a passenger, who went in search of her daughter and son-in-law, who were traveling with her and had remained on the starboard side of the deck. After they had gone to Mrs. Savage’s assistance, the fact that a passenger had been injured was reported on the bridge to the first officer, whose watch terminated at 8 p. m., and he noted in the scrap deck log that such report was made at 7:50 p. m.

It is, therefore, capable of demonstration that the libelant stumbled and fell over this deck obstruction considerably before 8 o’clock of a clear and mild day, when the sun set by almanac at 7:29, and by computation offered on behalf of the respondent at 7:32. It is in my opinion too plain for further discussion that on a clear day in June, in the latitude of New York City, on the sunny side of such an object as a house or deck saloon, a construction of the size Of this chain box was plainly visible to any person of reasonably good vision and in the possession of his faculties. I am unable to conceive of anything more obvious than this chain box must have been to such a person.

[1] It is proven without contradiction that this particular structure or arrangement of steering gear is extremely common in vessels of the size and age of the Rosalind and has long been well known on vessels used for passenger traffic. Therefore no negligence as against the owners of the vessel can' be predicated on the construction of the ship.

But it is said that inasmuch as the promenade deck is given over to the use of passengers, and the structure in question is one over which people may fall, peculiar care is necessary in guarding or warning passengers exposed to this possible injury. [2] This may he true; but it is not necessary to dwell upon it in this case, because of the finding heretofore made that during all the time that Mrs. Savage was on board the Rosalind until the time of her accident the obstruction was obvious, and that which is obvious to one of ordinary intelligence and in the possession of physical senses does not require special warning.

I am, therefore, of opinion that no negligence is shown on the part of the owners of the ship, and that, whatever may be the duty of the managers of such ship in respect of such an obstruction after nightfall or during stormy-weather, there was nothing in the conditions existing at the time of the accident to require any precautions to be taken in the premises. Unless negligence in the respondent be shown there can be no recovery here; but it may be noted that under circumstances no more extreme than are shown in this case either the claimant or defendant has been exonerated from negligence or active lack of care found to exist in libelant oí plaintiff. Elder Dempster Shipping Company v. Pouppirt, 125 Fed. 736. 60 C. C. A. 500; The Anchoria (D. C.) 77 Fed. 994; The Southside (D. C.) 155 Fed. 364.

In common-law courts the following cases seem to me relevant: Strutt v. Brooklyn, etc., Ry. Co., 18 App. Div. 134, 45 N. Y. Supp. 728 (where a passenger stumbled over a hose lying across a wharf while en route, to board a steamer); Fogassi v. New York, etc., Railroad Company, 17 App. Div. 286, 45 N. Y. Supp. 175 (where a passenger went with a crowd over an unguarded gangplank leading from a ferryboat to the wharf during the night); Race v. Union Ferry Company, 138 N. Y. 644, 34 N. E. 280 (holding that a ferry company is entitled to assume that passengers will take some care of themselves, and such carrier need only use such care and skill as will make the entrance to its boats safe for persons of ordinary prudence).

Much testimony has been taken to show that a sloping cover for the stearing chains would have been less dangerous; but it is not enough- to make out a case of negligence to suggest that additional precautions would have pre*781vented the accident. Loftus v. Union Ferry Company, 22 Hun, 33, affirmed 84 N. Y. 455. 38 Am. Rep. 533.

[3] These considerations require the dismissal of Mrs. Savage’s libel, and if that falls the libel of Dr. Savage falls also.

It is not, however, to be understood that any opinion is thereby to be inferred as to. tlio existence of jurisdiction in such a iibol as that of Dr. Savage. No instance of what is in substance an action per quod consortium amisit has been shown in admiralty. The nearest approach that I know of is Moses v. Hamburg Packet Company (D. C.) 88 Fed. 329, where a recovery was liad by a father for the loss of services of his son, who had been injured on shipboard. The son also had brought his libel, as Mrs. Savage did here. In those cases, however, no question of jurisdiction was raised, and it was purposely avoided. The suits were originally brought at common law, and were discontinued upon a stipulation by counsel for tbe steamers that they would appear and make no defense on the merits, if libels in admiralty were substituted for the common-law suits.

Wheeler, Cortis & Haight (Charles S. Haight and Franklin A. Wagner, of counsel), for appellants.

Conyers & Kirlin (J. Parker Kirlin and John M. Woolsey, of counsel), for appellee.

Before LACOMBE, COXE, and WARD, Circuit Judges.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

PER CURIAM.

Decrees affirmed, on opinion of Hough, District Judge.