The stewardess of a steam vessel belonging to a corporation sued
it to recover damages for personal injuries sustained by her. She
came out of the cabin, which was on deck, to throw the contents of
a pail over the side of the vessel at a gangway facing the door of
the cabin, and leaned over a railing at the gangway, composed of
four horizontal rods, which gave way because not properly secured,
and she fell into the water, probably striking the side of a boat.
The rods were movable, to make a gangway, and had been recently
opened to take off some baggage of passengers, and not properly
replaced. The porter and the carpenter had attempted to replace
them, but left the work, knowing that it was unfinished. The
persons composing the ship's company were divided into three
classes of servants, called three departments -- the deck
department, containing the first and second officers, the purser,
the carpenter and the sailors; the engineer's department,
containing the engineers, the firemen and the coal-passers, and the
steward's department, containing the steward, the waiters, the
cooks, the porter, and the stewardess. Everyone on board, including
the plaintiff, had signed the shipping articles, and she had
participated in salvage given to the vessel. The master was in
command of the whole vessel.
Held, they the porter and the
carpenter were fellow servants with the plaintiff, and that the
corporation was not liable to her for any damages.
The circuit court left it to the jury to determine, if they
found there was negligence, whether the injury was occasioned by
the careless act of a servant not employed in the same department
with the plaintiff.
Held error, and that the court ought
to have directed the jury, as requested, to find for the defendant
on the ground that the negligence was that of a fellow servant,
either the porter or the carpenter.
The verdict was for $5,000, and the judgment was for that
amount, and $306 interest for the time between verdict and
judgment, and for $60.25 costs.
Held that the matter in
dispute exceeded the sum or value of $5,000, exclusive of costs,
within the Act of February 16, 1875, c. 77, § 3, 18 Stat. 316, even
though, without the interest included in the judgment, the amount,
exclusive of costs, would not be over $5,000.
The case is stated in the opinion.
Page 133 U. S. 376
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This was an action to recover damages for personal injuries
brought by Barbara Merchant against the Quebec Steamship Company, a
Canadian corporation, in the Superior Court of the City of New
York, and removed by the plaintiff into the Circuit Court of the
United States for the Southern District on New York. The case was
tried by a jury, which found a verdict for the plaintiff for
$5,000, on which a judgment was entered in her favor for that
amount, with $306 interest from the time of rendering the verdict
to the time of entering judgment, and $60.25 costs -- in all,
$5,366.25. The plaintiff was the stewardess of the steamship
Bermuda, a vessel belonging to the defendant, and one of a
line of vessels plying between the City of New York and the West
Indies. She had been employed on the vessel for about eighteen
months. It was her duty as stewardess to attend to the ladies'
rooms in the cabin, and, in the course of that duty, to empty
slops, as to which her orders were to throw them over the side of
the vessel. The cabin was on deck. A railing extended around the
vessel, and consisted of four horizontal iron rods, which were
supported at intervals of about 4 1/2 feet by stanchions. In this
railing there were openings or gangways for receiving and
discharging freight and passengers. Three of the gangways were for
passengers. One of them faced one of the doors of the cabin, which
open on the deck. In order to use these openings or gangways, the
four iron rods which formed the railing of the gangway, instead of
being fixed immovably to the stanchions, were each of them fastened
at one end to a stanchion by a ring or eyelet in which the rod
could swing, the other end of each rod being formed into a hook
which went into an eye fastened on another stanchion to receive it.
This was a proper construction of the railing at the gangway.
On the 28th of December, 1883, the vessel was at anchor from a
mile and a half to two miles off the shore of the Island
Page 133 U. S. 377
of Trinidad, one of the islands at which she stopped in her
trips. Some passengers from New York were to land at Trinidad, and
their baggage was put off through the gangway on the starboard side
aft into a boat from the shore. To do this, the four rods composing
the railing in the gangway were raised, and the gangway was opened.
After the baggage had been discharged, the carpenter and the porter
of the vessel undertook, according to the testimony of a witness
for the plaintiff, to replace the rods in their proper position. He
says that the porter, one West,
"was at one stanchion, pushing forward, while the carpenter
stood at the other, where the hook fitted into the eye, trying to
force it into the eye. It began raining, and the carpenter and West
were beginning to get wet."
Thereupon the carpenter left the gangway, and the porter left it
soon afterwards. The rods were not placed in their proper
positions, but remained so far unfastened that the hooks were not
secured in the eyes. The porter testified, as a witness for the
defendant, that he told the carpenter to put the rods in, and that
he replied, "Wait until the rain goes over." While the rods were
thus unfastened, the plaintiff came out of the cabin door with a
pail of slops to throw its contents over the side of the vessel.
She leaned over the railing at the gangway, the rods gave way, and
she fell overboard, through the opening, and was seriously injured.
She probably struck the edge of a small boat which was lying there,
and thence fell into the water. She had been in the habit of
emptying sops at this gangway, but had never noticed the hooks.
The ship's company consisted of thirty-two or thirty-three
persons, divided into three classes of servants, called three
departments -- the "deck department," the "engineer's department,"
and the "steward's department." The captain, the first and second
officers, the purser, the carpenter, and the sailors were in the
deck department. The engineers, the firemen, and the coal-passers
were in the engineer's department. The steward, the waiters, the
cooks, the porter, and the stewardess were in the steward's
department. Everyone on board, including the plaintiff, had signed
the shipping articles, and she had participated
Page 133 U. S. 378
in salvage given to the vessel. The master or captain was in
command of the whole vessel.
At the close of the evidence, the court to direct the defendant
requested the court to direct the jury to find a verdict for the
defendant, on the grounds (1) that the injury sustained by the
plaintiff was one occasioned, if there was any negligence, by the
negligence of a fellow servant, and (2) that, on the uncontradicted
testimony, the plaintiff herself was guilty of contributory
negligence, and could not recover. The court refused so to direct
the jury, to which refusal the defendant excepted.
We think the court ought to have directed the jury to find a
verdict for the defendant on the ground that the negligence was
that of a fellow servant, either the porter or the carpenter. As
the porter was confessedly in the same department with the
stewardess, his negligence was that of a fellow servant. The
contention of the plaintiff is that as the carpenter was in the
deck department and the stewardess in the steward's department,
those were different departments in such a sense that the carpenter
was not a fellow servant with the stewardess. But we think that, on
the evidence, both the porter and the carpenter were fellow
servants with the plaintiff. The carpenter had no authority over
the plaintiff, nor had the porter. They and the plaintiff had all
signed the shipping articles, and the division into departments was
one evidently for the convenience of administration on the vessel,
and did not have the effect of causing the porter and the carpenter
not to be fellow servants with the stewardess.
The injuries to the plaintiff were caused solely by the
negligence of one or the other of two fellow servants, who were in
a common employment with her, and there was no violation or
omission of duty on the part of the employer contributing to such
injuries. Neither of her fellow servants stood in such relation to
her or to the work done by her, and in the course of which her
injuries were sustained, as to make his negligence the negligence
of the employer. The case therefore falls within the well settled
rule, as to which it is unnecessary to cite cases, which exempts an
employer from liability for injuries to a servant caused by another
servant, and does not fall
Page 133 U. S. 379
within any exception to that rule which destroys the exemption
of the employer when his own negligence contributes to the injury
or when the other servant occupies such a relation to the injured
party, or to his employment, in the course of which his injury was
received, as to make the negligence of such servant the negligence
of the employer.
The plaintiff took upon herself the natural and ordinary risks
incident to the performance of her duty, and among such risks was
the negligence of the porter and the carpenter, or of either of
them, in the course of the common employment of the three. There
was nothing in the employment or service of the carpenter or the
porter which made either of them any more the representative of the
defendant than the employment and service of the stewardess made
her such representative.
The court left it as a question for the jury to determine, if
they found that negligence existed, whether the injury was
occasioned by the careless act of a servant not employed in the
same department with the plaintiff. This ruling was excepted to by
the defendant, and we think it was erroneous.
The plaintiff takes the point that, as the verdict did not
exceed $5,000, this Court has no jurisdiction, although the
judgment was for the amount of the verdict, with interest and
costs. The statute in regard to the jurisdiction of this Court
provides that the matter in dispute must exceed the sum or value of
$5,000, exclusive of costs. Act of Feb. 16, 1875, c. 77, § 3, 18
Stat. 316. It is well settled that the test as to the jurisdiction
of this Court in a case like the present is the amount of the
judgment below, even though, without the interest included in it,
the amount, exclusive of costs, would not be over $5,000.
N.Y.
Elevated Railroad v. Fifth Nat. Bank, 118 U.
S. 608.
The judgment of the circuit court is reversed, and the case
is remanded to that court, with a direction to award a new
trial.