Page:Federal Reporter, 1st Series, Volume 7.djvu/939

 1UE JIM>BBIiAND,; '027 �lu Admiraltj. �D. Cowan,.M. Veale,ana J. Warren Coullton, for libellant. �Henry G. Word and Morton P^ Henry, for respoiidents. �BoTLBB, D. J. No debatable question of law ie invblved. The contract imposed on.respondent an obligation to observe the bigbest degree of care for the paBsehger's safety. For accidents wbich conld not be avoided by snch care, (resulting from latent defects in macbinery, or other similar cause,) he was not responsible. He was not an insurer. The Ii^w is well stated in Meyer v. Railroad Co. 14 P. F. Smith, 222. �Here 4;he accident resnlted from the "shoulder of theswitel drawing ont of the block. " So the witnesses testify, and so the. libellant says in his "statement of factS." This oould only occnr by reason of some defect in the shoulder; and the shoulder being imbedded in wcod, and covered by the iron strap, (which was permanently afiSixed thereto;) this ' defect eould not be discoyered. The impossibility of such discovery is shown not only by the testimony of the wit^ nesses, but also by inspection of the block. It cai^not be urged that the block was liable to such an occurrence, (as "the shoulder drawing out,) because of its peculiar construction, and, therefore, an improper one; for the evidence shows that the drawing out of the swivel, in similar blocks, had never occurred before, to the witnesses' knowledge, and that the block is such as is in common use. It follows from what bas been said that the respondent is not liable for the complain- ant's injury. �WhUe the question of contributory negligence, which was discussed by counsel, is rendered unimportant by the conclu- sion reached, I, nevertheless, deem it proper to say, (as the case may not rest here,) that I have found no evidence of negli- gence in the libellant, contributing to his injury. If his sit- uation on deck, at the time rendered him liable to injury from such an accident as occurred, it was the respondent's duty to remove him, or distinctly warn him of his danger, before attempting to draw up the sail. It is clear, however, that no such danger was, or could be apprehended, The request made of passengers to move, was simply to save them from ��� �