(269 F.) Action by Andrew Allen against Patrick Connelly. Judgment for plaintiff, and defendant brings error. Affirmed. Marshall Van Winkle, of Jersey City, N. J., for plaintiff in error. Benjamin J. Spitz, of Paterson, N. J., and Joseph A. Shay, of New York City, for defendant in error. Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge. BODINE, District Judge. Andrew Allen, the plaintiff below, a young man of 23 years of age, was employed on the evening of September 27, 1917, and for some time prior thereto, by the Erie Railroad Company as a checker in the Croxton yards in Jersey City. Patrick Connelly, the defendant below, had a contract with the Erie Railroad Company for unloading coal cars; the unloading being accomplished by means of a locomotive crane. Allen's duty was to check up the number of cars unloaded by Connelly-their capacity and weight. The work did not consume his entire time, but necessitated his presence in the yard during the period that he was on duty. At about 8 o'clock on the evening in question, Connelly's locomotive crane was in the lower part of the yard for the purpose of taking on water. The water was taken by means of a hose from a water tower. The testimony of Allen was to the effect that Connelly's fireman asked him to hand up the hose, so that the tank on the crane might be filled. To reach the hose, Allen was obliged to climb over coal, which was piled up about 3 feet high along the track. In order to facilitate the filling of the tank, the locomotive crane had been swung around, so that the boom, as well as the cab from which the crane was operated, was horizontally across the track. The tank being filled, the hose was handed to Allen by the fireman, and he shut off the water "and hollered at the engineer to wait a moment until [he] got out of the way," and he answered he would. Just as Allen cleared the machine, the engineer started up the engine to turn the crane back in place, and Allen was struck and seriously injured. Allen's story was controverted by witnesses called by the defendant. [12] The learned trial judge charged the jury, in part, in the following language: "If you find, therefore, that his [Allen's] account of how the accident occurred is the correct one and not the account as alleged by the defendant, then the defendant was under the duty to use that degree of care which a reasonably prudent person would have exercised under the circumstances, at that time and place, in order not to injure the plaintiff. * * Now, if you turn to the other side and believe the statement of the plaintiff, that he told the engineer to wait until he got out of the way, and he was not upon the crane, then it was the duty of the defendant, through his agents and servants, to use the care and caution that a reasonably prudent man would have exercised in order not to injure the plaintiff; and if the servants and agents and employés did not use that care, and the plaintiff was injured in consequence, then the defendant is liable." This charge, in the light of the testimony, was in all respects proper. Allen was in no sense the fellow servant of the defendant's employé at the time he was injured, if the jury believed his story. The only thing that remained to be done was for Allen to gain a point of safety. The voluntary service he had rendered had terminated. The jury must have believed his story in this respect, and also when he said that the defendant's employé knew the danger Allen was in. It was, therefore, clearly negligent for the defendant's employé to put in motion a force which he promised not to do, which force, the jury found, caused the injury to Allen. These circumstances take the case out of the line of cases typified by Kierman v. New Jersey Ice Co., 74 N. Y. Law, 175, 63 Atl. 999, where a person is injured by the act of a servant while riding on a wagon or a street car, or other unauthorized place. There was clearly a duty upon the defendant's employé to use reasonable care under the circumstances, and the jury found that he did not. The other assignments of error are without merit, in that they overlook the fact that Allen's service had terminated, and that he was seeking a place of safety, had apprised the defendant's employé of his position of danger, and secured the promise to delay until he gained a point of safety. The judgment below is affirmed. FOREIGN & DOMESTIC TRANSP. CORPORATION v. CURTIS. (Circuit Court of Appeals, Third Circuit. January 13, 1921.) No. 2569. Appeal and error 215 (1)—Instruction authorizing verdict of no cause of action, instead of nominal damages, held not reversible, in absence of objection. In an action against the seller of a ship for the cost of repairs necessary to make the ship conform to the warranty of seaworthiness, where the evidence showed that some of the repairs were necessary for that purpose, but that other repairs were in the nature of improvements, and furnished no basis for determining the proportion of the necessary repairs, or their cost, an instruction, not objected to at the trial, that if the evidence did not enable the jury to calculate the cost of the necessary repairs with reasonable certainty, the verdict should be no cause of action, does not require reversal, although plaintiff was entitled at least to nominal damages. In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge. Action by the Foreign & Domestic Transportation Corporation against Asher Curtis. Judgment, for defendant, and plaintiff brings error. Affirmed. John M. Enright and McDermott & Enright, all of Jersey City, N. J., for plaintiff in error. David A. Newton, of Jersey City, N. J., and George S. Hobart, of Newark, N. J., for defendant in error. Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) BODINE, District Judge. Asher Curtis, the owner of a seven undivided sixty-fourths interest in the schooner Benjamin A. Van Brunt, for himself and others, on April 24, 1916, entered into a contract for the sale of the vessel. The contract contained a clause that the vessel was guaranteed sound and seaworthy. Mr. Curtis, having acquired the interest of the other owners in the meantime, delivered a bill of sale, without warranty, for the vessel, and she was accepted by the plaintiff corporation, which subsequent to the acceptance of her had certain repairs made, part of which were claimed to be necessary in order to render her sound and seaworthy. The plaintiff brought this action for breach of the warranty contained in the contract for sale, seeking as damages the cost of such repairs. The jury having determined in favor of the defendant, there is no need to pass upon the propriety of the maintenance of the plaintiff's action, but by reason thereof no inference is to be drawn that the previous warranty was not merged in the bill of sale without warranty and the acceptance of the vessel by the plaintiff after inspection., During the course of the trial, it developed that the plaintiff's proof of damages showed that some of the expenses were incurred for improvements and betterments in the vessel and others for making her sound and seaworthy. There was no attempt made at segregating the expenses, nor were any witnesses called who could furnish the jury with any idea as to what part of the expenses were incident to making the vessel sound and seaworthy and what part were for betterments and improvements upon her. The question of damages was submitted to the jury by the trial judge in the following language: "If you should find that part of the work was necessary to make her sound and put her in a seaworthy condition, and the other part which was done by the plaintiff was not necessary, and you cannot separate them from the evidence which has been presented, so that you can calculate with reasonable certainty the cost of that which was necessary, then you would not be allowed to guess and estimate it upon some basis not presented to you here in the testimony; and in that event your verdict would be ‘no cause of action,' because you could not reach a conclusion as to what was necessarily required to make her sound and put her in a seaworthy condition." The charge, in substance, correctly states the rule of damages in contract actions, except in the use of the words "no cause of action," which we have italicized. Error was assigned, in that the trial judge should have substituted "nominal damages" for the words "no cause of action." This inadvertence of the trial judge, if error, was not called to his attention. Had it been called to his attention, it no doubt would have been corrected, for it is obvious that the party who has proved a cause of action is entitled to at least nominal damages. The substitution, however, of such language in the charge, would have made no substantial difference in the findings of the jury, for the only difference which the use of the words "nominal damages" would have made would have been the carrying of a certain amount of costs. No other error appearing in the record, and this now alleged error not having been brought to the attention of the trial judge, the judgment is affirmed, with costs. SIGMUND ULLMAN CO. v. CABOT. (Circuit Court of Appeals, Second Circuit. November 24, 1920.) No. 44. Sales 81 (6)-Contract for one year expired at end of year. Under a contract by plaintiff to deliver to defendant five cars of carbon black during 1915, with privilege to defendant to cancel the contract for whatever quantity not required during the year, defendant held not entitled to subsequently demand delivery of the quantity not taken during the year. In Error to the District Court of the United States for the Southern District of New York. Action at law by Godfrey L. Cabot against the Sigmund Ullman Company. Judgment for plaintiff, and defendant brings error. Affirmed. Paskus, Gordon & Hyman, of New York City (A. B. Hyman, of New York City, of counsel), for plaintiff in error. James L. Putnam, of New York City, for defendant in error. WARD, Circuit Judge. July 21, 1915, the plaintiff, Cabot, agreed to deliver to the Ullman Company, defendant, five cars of carbon black during the year 1915 at 412 cents per pound, upon the following terms: "We hereby agree to take five cars of G Elf carbon black in addition to our contracts of May 1, 1913, and April 9, 1915. This black to be taken during the year 1915, same terms and conditions as on our contracts, the price to be 42c. per pound. "It is understood that if we do not require this quantity of black during the year 1915, we are privileged to cancel the contract for whatever quantity we have not taken." September 26, 1917, Cabot agreed to deliver to the defendant and the defendant agreed to take 24 cars of carbon black at 20 cents per pound, subsequently reduced by agreement to 15 cents. Cabot brought this action to recover the price of one car shipped in March, 1918, at 15 cents per pound, $4,826.25. The Ullman Company pleaded as a set-off that Cabot had failed to deliver two cars under the contract of July 21, 1915, to its damage $3,392.85, and tendered the difference between the amount of its damage aforesaid and the sum sued for, $4,826.25, viz. $1,433.40. September 26, 1915, Cabot asked the Ullman Company for shipping instructions for the three cars then undelivered under the contract of July 21, 1915, but only an order of December 20, 1915, for one car was given in 1915. Judge Mack held that the contract of July 21, 1915, gave the plaintiff an option to take any or all of five cars in 1915 and, no orders having been given in that year for the two undelivered cars, the option terminated, and they could not be ordered out subsequently. Accordingly For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) he directed a verdict for the plaintiff, and the defendant took this writ of error. The Ullman Company contends that, as it did not expressly cancel the contract of July 21, 1915, it continued in force. We think the contract was rightly construed, because it was intended to meet the Ullman Company's requirements in 1915, and the cars were to be ordered in that year, after which it expired by its own limitation. The judgment is affirmed. PEOPLE'S NAV. CO., Inc., et al. v. TOXEY et al. TOXEY et al. v. PEOPLE'S NAV. CO., Inc., et al. November 4, 1920.) (Circuit Court of Appeals, Fourth Circuit. Nos. 1833, 1834. Shipping 203-Statute limiting liability should be liberally construed. Rev. St. § 4283 (Comp. St. § 8021), limiting the liability of a vessel owner for loss incurred without knowledge to the value of the owners' interest in the vessel and her freight then pending, should be liberally construed in favor of shipowners, so as to encourage shipbuilding and the employment of ships in commerce. Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Petition by the People's Navigation Company, Incorporated, and others for limitation of liability, opposed by A. F. Toxey and others. From a decree of the District Court (261 Fed. 797), denying the petition, both parties appeal. Affirmed. Edward R. Baird, Jr., of Norfolk, Va. (Baird & White, of Norfolk, Va., on the brief), for People's Nav. Co., Inc. S. M. Brandt, of Norfolk, Va. (John W. Oast, Jr., and H. A. Sacks, both of Norfolk, Va., on the brief), for administratrices of W. N. Kinsey and Freeman Coleman. Leon T. Seawell, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., and E. F. Aydlett, of Elizabeth City, N. C., on the brief), for A. F. Toxey & Co., W. J. Woodley, C. W. Stevens & Co., Inc., executors of J. B. Flora, and W. H. Weatherly & Co. Before KNAPP and WOODS, Circuit Judges, and SMITH, District Judge. WOODS, Circuit Judge. [1] Section 4283 of the Revised Statutes provides: "The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing lost, damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." Compiled Statutes, § 8021. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |