The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-28

versity of New York, as it will appear
should be nameless. Then that the $10,t
for building colonnade 500 feet in LEM
Hudson river valleys.
in England so far as the common law
| Is concerned.
1t is fortunate indeed that in these
matters the courts of Hawaii never were
''fettered by the common law" This
was and is enlightened and civilized
community; 1t early became the duty of
the highest courts in the Kingdom of
| Hawaii to decide the case of Kake VS..
Horton according to natural right and
Justice, and 1t did so under circum-
stances of peculiar interest That deci-
sion remained the law of this kingdom
and now remains the law of the Terri
tory of Hawaii. 1t is over forty years
since that decision was first rendered. 1t
would Ill become this or any other court,
except for some potent reason, which
reason must be founded in natural JUS
tice to override so we'll considered and
so long established rule of action, as
the one decided in Kake VS.. Horton.
The question now presented is: We're
the officers and men on the Robert Lew
ers guilty of negligence, resulting in the
death of the deceased. A duty was due
the deceased by the captain and officers
and men Of the ship Robert Levers NO
man has any more right to Kill another
Prom negligence than from an assault.
If the defendant was guilty of negll-
gence. 1t mattered not whether the libel
lees knew of the defect In the chain or
not
A knowledge of a mans duty is pre-
srmed and so there are no degrees 10
negligence "Often the injury itself af-
fords sufficient prima facie evidence OF
negligence.
The point in this case is, was there
such a disregard of duty as Will hold the
defendant responsible in damages? 1t
is admitted the deceased was killed by
being struck by an iron bed plate weigh
ing %. 900 pounds, and that the accident
occurred by reason of the breaking OF
chain while that casting was being lanu-
ed from the vessel named; that the cast
ing thereby swung around against the
side of the ship and killed the deceased
as he was climbing up the side OF the
vessel to get away from 1t.
The officers and men of the ship mad
exclusive control of the bed plate that
was being landed They furnished the
rope and the chain for the guy and lash
Iings; they were in command or the SIT
uation; they were delivering the freight
and it was their duty to deliver 1t to the
tconsignee in suitable and proper man
ner.
1t seems that for the purpose of show
ing how the accident occurred. libellee
brought into court part of the chain
that broke. 1t did not produce the part
broken off nor the broken link or broken
ring, or broken hook forming the chain
thus broken. 1t was defendants chain
and presumably in its possession, and
the whole ought to have been produced
in court 1t would then have been easy
= 1las u thnr W a
defect in the iron that broke, or whether
1t was a clean break of solid iron. If
the broken, link had been produced this
could have been made apparent. This
is most unfortunate circumstance.
The Court is not at all convinced that
"a reasonable man, under the circum-
stances of this case. would have believ-
ed that an old five-eighths of inch
tchain was strong enough to hold and
!, safely handle the vast weight of that
!, tcasting; at all events it proved not
strong enough to do that, and the fact
that the chain broke, and thus caused
the death of deceased, Is one of the evil
idences of neglect.
The chain certainly did not look strong
. enough for the purpose. 1t Is in testi-
mony that chain is more dangerous for
such use than a rope, and the Court
holds that it was the duty of the Off
, GERS and men of that ship, when unload
, ing a piece of machinery weighing 25,-
. 600 pounds, to have used the very best
and strongest appliances known to that
business, and It was negligence to have
used any doubtful or uncertain appli-
ances, or any rope or chain of doubtful
, strength; and that in this case, the I'M
: explained cause of the breaking of the
, chain is one of the proofs of negligence
See Caldwell VS.. New Jersey Straw Com
r pany, AZ n. Y. 2S2. See also the recent
, case of Stewart vs. Ferguson, 1874 n. Y.
: 55S, Where a scaffold provided by the
master for a servants use falls, and no
other cause of the call is ascertained ex-
cept as inferred from the fall itself, the
, fall was held to be prima facie evil
dence of the negligence of the master In
J an action by the servant to recover
damages received in consequence there
| Of 1t Is in evidence that when a
chain has been long in use, the iron be-
, comes brittle and weak This was an
, disappearing chain. The only question
seems to be, did 1t look strong enough
ar the time, and were the officers of the
, ship honestly deceived by its looks?
The Court is compelled to believe that
, the weight of the testimony shows neg
ligence on the part of the officers and
: men on that ship. The draymen were
not trespassers by being where they
: We're they went after freight, and they
, had the right to expect due care should
| be exercised by the officers and men of
t the ship in delivering It to them The
} old barbarous rule that every man must
: look out for himself no longer prevails:
it is the duty of the officers on ship
, board to protect life, in handling their
freight. The officers of a ship hold po-
T sitions of trust, and they are required to
exercise ordinary care in handling all
z freight.
In fact. every common carrier of
) freight. as well as passengers must so
conduct himself as not to imperi1 the
life or limb of those whose duty it is to
come in contact with him.
breaking of that chain was the cause of
, the death of deceased. 1t will be seen
in the examination of Captain ].
F. Haglund that he testified: I'VE pre-
fer rope because we can't always rely