Page:Federal Reporter, 1st Series, Volume 4.djvu/511

J>WT£B V. NATIONAL STEAM-SHIP 00. 497 �rected to be done by the owner of the steamer. There is evi- dence showing that gratings were put on the hatchway during the night, leaving one off for the passage of the elevator pipe, and that a tarpaulin was put over the hatchway to keep the falling rain from reaching the grain as it went into the ship. But there is no evidence to show who it was that put on the grating or the tarpaulin, or to show that the section which gave way under the deceased was disturbed after being put on in the night. There is a bit of evidence showing that the crew of the steamer were employed in washing the decks dur- ing the night, and it bas been argued that the grating and tarpaulin were put on at that time to protect the cargo from the water used to wash the deck. But the evidence is posi- tive that neither the grating nor the tarpaulin were put on or disturbed at that time, nor for that purpose. �Conceding that the plaintifE is entitled to invoke the pre- Bumption upon which, in the absence of evidence as to the faot, he is compelled to rely, the difiSculty is that the case con- tains evidence by which the presumption is overthrown. The positive testimony of the boatman of the steam-ship from the steamer's deck, that he did not meddie with the grating, or see it meddled with by any of the crew, and the evidence showing that it would be for the stevedores engaged in load- ing the vessel to put on and remove the grating at the hatch- way, is sufficient evidence to repel any presumption that the wrong-doer was one of the crew. The evidence points so strongly to the stevedores as the wrong-doers as to forbid any other conclusion by the jury. Indeed, it appears to be con- ceded, in behalf of the plaintiff, that such was the fact ; for one point made in the brief is that the defendant "by the contract authorized Walsh to do the very act which caused the injury, to-wit, to remove the hatches, and is responsible for Ma neg- ligence." �The case is, then, reduced to the question of law, whether the defendant is responsible for the negligent act of the steve* dore in improperly placing or in displacing the grating on which the deceased stepped. �T.4:,no.6— 32 ����