Page:Federal Reporter, 1st Series, Volume 4.djvu/508

e9e FBDBBIL BEPOBTEB. �It appeared in evidence that during the nîght before the accident in question the gratings had been placed upon thia hatchway, with a tarpaulin over them for the purpose of pre- venting the falling rain from wetting the grain then being loaded into the steamer by means of the elevator. There was no direct evidence showingby whom the grating was placed upon the hatchway, or how it was there placed, or whether it remained in the position as first placed up to the time of the accident. It was proved that a few moments before the acci- dent men employed by Walsh Brothers, stevedores, had taken off the tarpaulin from the hatchway, and removed several sec- tions of the grating in order to facilitate their labor in loading the cargo. At the time of the accident the deceased and oth- ers employed by Burgess, the owner of the elevator, were engaged in putting another length of pipe to the elevator pipe for the purpose of passing grain through the hatchway into the hold. The deceased was an employe of Burgess, who had a contract with the defendant to transfer the grain from a canal-boat to the steamer. The deceased was not, therefore, the servant of the defendant, but of Burgess, an independent contractor. �Walsh Brothers were also independent contractors, who had a contract with the defendant to discharge and load the steam- ships of the line at so much per ton. The stevedore's men at work on the cargo at this time were, therefore, not the servants of the defendant, but of Walsh Brothers. �The cause of the accident is clearly proved to have been the nnsafe manner in which the section of the grating upon which the deceased stepped was placed upon the hatchway. The actual wrong-doer was the person who placed the grat- ing upon the hatchway during the night, or some person who changed the position of the grating after it had been so placed ; but there is no evidence from which it can be deter- mined whether the negligence occurred at the time the grat- ing was placed upon the hatchway, or at a subsequent time, or by whom the negligent act was done. Accordingly it is contended that the defendant, being the owner of the steamer, vvas charged with the duty of maintaining the hatchway in a ����