Carstensen

The appellant brought a libel in personam against the appellee to recover damages for personal injuries incurred by him while engaged as a longshoreman in unloading a cargo .from a vessel which belonged to the appellee, in which work he was assigned to duty as. a winehman. He alleged that he was ordered by the first mate of the ship, “who had full charge of the unloading of said vessel,” to clean the hack rollers of the winch before commencing operations, and that while he was so. engaged in obedience to the order the mate carelessly and negligently and without warning, started the winch in operation, thereby causing the injury. The appellee’s answer denied the charge of negligence, and alleged the libelant’s own negligence, in that he cleaned the rollers while the winch was running. For an affirmative defense the appellee alleged that it was not answerable for the mate’s negligence, for the reason that he and the appellant were fellow servants. Under the issue so presented the testimony was sharply contradictory on the question whether the injury was caused by the appellant’s negligence or by that of the mate. The trial court, without determining that question, dismissed the…