The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 406
xv, 1025 p. ; 23 cm.View a full description of this legislative document.
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250 FEDERAL REPORTER
a new block for the old one, that he retained the U-shaped forging,
and turned it over to the agents of the vessel; but the evidence does
not disclose what disposition was made of the old block. The only di-
rect testimony in regard to the width of the strap was that given by
James McNaught, a consulting engineer, who was a witness for the
claimant. He testified that the width of the strap was about 21/4
inches and that there was not more than one-tighth of an inch play
between the head of the pin and the strap, and that if it had been more
he would have discarded the block when he inspected it after the
fire; but, as the length of the pin from the inside of the strap to the
metal forging was about 1%/ inches in length, the strap could not have
been of this width. Witnesses for the libelant, however, testified that
from the amount of wear shown on the different parts of the pin there
was slack enough between the strap and the head of the pin, so that
the crack could have been easily discovered.
We are unable to determine the width of the strap from the lines
of wear upon the pin, and are in doubt whether the old breaks could
have been seen or not. The block with the strap, through which the
pin passed, was in the possession of the vessel after the accident; it
was not produced at the trial, and no explanation was given of the fail-
ure to produce it. The failure, unexplained, to produce evidence
which is in the possession of a party, raises a presumption that, if
produced, it would not be favorable to the contention of the party
possessing it. Kirby v. Tallmage, 160 U. S. 379, 16 Sup. Ct. 349,
40 L. Ed. 463; Graves v. United States, 150 U. S. 120, 14 Sup. Ct.
40, 37 L. Ed. 1021; Runkle v. Burnham, 153 U. S. 216, 225, 14
Sup. Ct. 837. 38 L. Ed. 694. We do not, however, rely upon this
presumption in reaching our conclusion because an inspection of
the pin discloses that there was unequal wearing on the inside of
the head next to the strap, and also upon the sides of the pin, and
we are convinced, as was the learned District Judge, that "originally
the pin bore almost wholly on one side, as the wear shows; and the
load was for a long time carried on that side of the pin, and the other
side did very little work." This unequal wearing clearly proves that
the pin must have been bent, by reason of the strain upon it not being
in the direct line of its axis, as originally designed, but at an angle with
it, caused by the uneven surface of its head.
We are satisfied that the crookedness of the pin, the uneven wearing
upon its head, and its failure to work freely as a swivel could be plain-
ly seen, and that they should have caused the vessel, in the exercise of
the degree of care required of it under the circumstances, to have made
such an examination as would have disclosed the old cracks in it, and
that it therefore was chargeable with notice of them and the defective
condition of the block, and solely liable for the injuries received by the
libelanit.
The decree of the District Court is affirmed, with interest, and the
appellee recovers his costs of appeal.
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/421/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.