The opinion
Goff, Circuit Judge,
(dissenting.) I think the decree of the district court should he affirmed. The libelant was one of the stevedores employed in unloading a cargo of iron ore from the steamship Serapis, in the port of Baltimore. ' Two winches were used by the steamship in unloading its cargo,—one for hoisting the ore out of the hold of the vessel, and the other to draw the crane to and from the wharf. Libelant was assigned by the head stevedore to the duty of running the last-mentioned winch, and while so employed his hand was caught between the cogs of the driving wheels, crushed, and permanently injured. He claims that the winch at which lie worked was dangerously constructed, not properly guarded to protect those employed to work it; and that it was negligence on the part of the ship owners to keep it in that condition.
1 think the testimony shows that the winch was dangerously constructed,—unnecessarily and unusually so. The valve stem is immediately in front of the cogs, and the wheel on the top of it, by which it is moved, is directly opposite the meeting place of the teeth of the cogs. While there is some conflict in the testimony on this point, the weight of the samo is that the distance from the cogs to the wheel is not more than from five to seven inches. .The stem is controlled by a valve near the deck at the feet of the winch man, from which the valve stem rises about three and one half feet, and on which is the wheel. There was no covering or guard over the cogs to protect the hands of the operative, as is usual in machines of this character; that could have been easily and at a trifling expense affixed. It is clear to my mind that it was improper to provide such a winch for such work, and that the steamship in doing so was guilty of negligence. It is no answer to this *94 to say that the winch was used for some years without an accident occurring; the wonder is that one did not happen sooner. The testimony does not show that the libelant was inefficient or careless, but that he was an experienced and skillful workman, 33 years of age, who fully understood his business. It is shown that he could not see the tub used in hoisting the ore without turning his eyes from the winch, and that he was compelled to do so while at work, and operate the valve at the same time. When he was so engaged the accident happened. Nor is it an answer to say that the libelant sought the employment and assumed the risk, and that he was not compelled to continue using the machine,—that he could quit work when he pleased. The risk he assumed was that common to such work when proper machinery is furnished. Such men cannot always quit work when they please. On the contrary, they are compelled to labor, and, as I understand the law, it requires those using their labor and providing machinery for that purpose, dangerous in character, to use all reasonable means to guard against accidents, and to protect those employed by them. In considering the duty and the liability of the employer to the party employed, Mr. Justice Harlan, in Hough v. Railroad Co., 100 U. S. 213 , said:
“One, and perhaps the most important, of these exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the-care which prudence and the exigencies of the situation require in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.”
Without quoting further from this case on this point, I cite Buzzell v. Manufacturing Co., 48 Me. 116 ; Railroad Co. v. State, 44 Md. 283 ; Wheeler v. Manufacturing Co., 135 Mass. 294 ; Ford v. Railroad Co., 110 Mass. 241 ; also Wharton on the Law of Negligence, (section 211,) where the author says:
“The question is that of duty; and without making the unnecessary and inadequate assumption of implied warranty, it is sufficient, for the purpose of justice, to assert that it is the duty of an employer, inviting employes to use his structure and machinery, to use proper care and diligence to make such structure and machinery fit for use.”
But it is contended by the appellant that the libelant cannot recover, because he, in effect, contracted to work the winch, and continued to use it with full knowledge of its defects. The libelant was not employed specially to work the winch, but to do any work usually done by stevedores in unloading a cargo of iron ore from a steamship. He naturally expected to find- the vessel provided with such machinery as was usual and proper for that purpose, and as was reasonably safe. When his turn came to run the winch he did so, but he was surprised at its construction, and complained of it. He was told by the mate, so he testifies, “to be a little careful, and it will be all right.” Another stevedore, *95 who was operating the winch the night before the libelant was injured, testifies that the mitten on his hand was caught in the cogs, and taken oil', and that when he mentioned the fact to the donkey engine man in charge, and told him that it ought to have a cover on it, the man replied, “Be careful.” It is true that libelant knew tiie machinery was defective, unguarded, and dangerous, but I do not think it follows that, therefore, he lost his right of action against the steamship in case of an accident occasioned thereby. The prevailing rule now on this subject is that the employe need not, when aware of the defect in machinery, abandon the service on that account, but that he may run some risk, such as a prudent man would take, without losing his right of action against the master in case injury results. On this point see Beach, Contrih. Nog. p. 373, § 140, and authorities there cited. It is stated as follows in ¡4hear, cfe It. Nog. (4th Ed.) § 209:
“Knowledge of a defect in machinery is no bar to recovery as a matter of law. Such knowledge may operate in mitigation of damages. Even confin- " nance in the service after knowledge of a defect is not, as a matter of law, contributory negligence.”
The decisions upon this question have been conflicting, still I do not think it can he maintained from them—from those rendered since the general use of the generally dangerous and complicated machinery run by steam—that even at common law the employe is deemed to have assumed all the risk of all danger by continuing to use such machinery after knowledge of its deflects. In admiralty the rule in such cases is now well established, and is authoritatively given ns by the supreme court of the United States in The Max Morris, reported in 137 U. S. 1 , 11 Sup. Ct. Rep. 29. Mr. Justice Blatciifoiíd, in the opinion in that case, says:
“Contributory negligence in cases like the present should not wholly bar recovery. There would have been no injury to the libelant but for the fault of tlie vessel; and while, on the one hand, the court ought not to give him full compensation for his injury, where lie himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the district judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb, and the public good will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by a libelant in a case like the present, where their fault is dear, provided the libelant’s fault, though evident, is neither willful nor gross nor inexcusable, and where other circumstances present a strong case for his relief.”
The Case of The Maharajah, 40 Fed. Rep. 784, and 1 U. S. App. 20, 49 Fed. Rep. 111, is relied upon by the claimant in this ease. The libelant in that ease, as in this, was injured while working a winch belonging to the machinery of a steamship. In that case the court found from the proof that the winch was in details of structure substantially like those in general use at the time it was built: that it had been in use for a dozen years or more, and that it was not materially out of repair; that such winches are still in common use upon vessels, but that an improved *96 machine has been introduced, constructed with a guard over the cogs. In the present case the evidence shows that the winch was unusual; was not the kind commonly in use, but of the class known as a “camel-back,” but unlike them in not having a guard for the cogs. One witness states that, while he had seen such winches before, they had always been protected with guards. Another testifies that this one was differently constructed from the other “ camel-backs” he had seen. The libelant testified that he had worked at a hundred different winches, and that on the others the valve wheel was further from the cogwheels. , Still another witness says that he had worked on many winches, and had seen “camel-backs,” but they “all had casings.” Another ran the winch after the libelant’s hand was crushed, and on that account noticed it particularly. He saw the “flesh and blood on the cogs,” and noticed that the valve was too close to the cogs for safety,—only from five to six inches off, he says. He had seen many winches like this'one, but they all had guards. In the Case of The Maharajah there was no notice given of the defect; in this case there was. So while the cases in several particulars are similar, so far as the testimony on these material points is concerned, they are quite different. I infer from the opinion of the court, delivered by Judge Wallace in the circuit court of appeals, that, had the proofs been different as to the dangerous character of the winch in use on the Maharajah, the decision of the court would have been in accordance with the equitable ruling of the supreme court of the United States in the Case of The Max Morris. For the reasons mentioned I see no error in the decree appealed from, and think it should be affirmed.