whether guard rope, absence of which constituted negligence of defendant, would have prevented plaintiff’s intestate from being washed overboard
How later courts described this case
- whether guard rope, absence of which constituted negligence of defendant, would have prevented plaintiff’s intestate from being washed overboard
- "we cannot say that there was no likelihood that a rope ... would not have saved the seaman”
Written by the judges who cited it.
The opinion
HOUGH, Circuit Judge
(dissenting in part). I agree with this opinion regarding the admission in evidence of the photograph and the effect- of previous decisions of this court as to assumption of risk; but I cannot approve of the obvious intent of the majority to dump this ease on a jury with no more or different testimony than that which is now before us. Whenever a jury is asked to declare whether a certain act or omission is “lack of care according to the circumstanc'es” — i. e. negligent — proof of the circumstances includes proof as to what skilled men habitually do under similar circumstances, unless the occurrence at bar is so familiar to a jury of the vicinage as to need no such exposition. Injury by a vehicle to a foot passenger on a New York street crossing is an instance of such familiarity.
But the present decision invites, by easy possibility, a jury of tailors and haberdashers to pass judgment on how to make a wet and rolling deck in a seaway a “safe place to work”; for there is no evidence at all as to what good seamanship, not the fears of tailors, require on such a ship at such a time. In my opinion, no ease along these proper lines was made for a jury, and the result below was right.