Oliveras v. United States Lines Company

• Decision Date: 05 June 1963
• Docket Number: Docket 27458.,No. 261,261
• Citation: 318 F.2d 890
• Parties: Guillermo OLIVERAS, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

318 F.2d 890 (1963)

Guillermo OLIVERAS, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant-Appellee.

No. 261, Docket 27458.

United States Court of Appeals Second Circuit.

Argued March 12, 1963.

Decided June 5, 1963.

Donald S. Sherwood, New York City (Kenneth Heller, New York City), for appellant.

Robert P. Hart and Henry J. O'Brien, New York City (Kirlin, Campbell & Keating, New York City), for appellee.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

LEONARD P. MOORE, Circuit Judge.

Appellant, plaintiff below, brought suit in the district court to recover damages for a back injury allegedly sustained while employed aboard defendant-appellee's vessel, the S.S. America. Suit was predicated on negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness. A claim for maintenance and cure was also made. During the course of the trial, appellant withdrew his claim of unseaworthiness and his action was submitted to the jury solely on the claim of negligence under the Jones Act; the claim for maintenance and cure was reserved for the trial judge. The jury returned a verdict for the defendant on the Jones Act claim and the trial judge determined that plaintiff was entitled to no further maintenance and cure.

Appellant, a seaman, was employed aboard the S. S. America as a tourist class deck steward whose duties consisted of renting deck chairs, pads and blankets to tourist class passengers and, in general, rendering service to the passengers with respect to the chairs. At about 3:30 P.M. on the date of the accident, he was told to remove the blankets and pads from the chairs on deck because of impending rain. After completing this task, he was instructed to remove the deck chairs and take them below. In the course of this operation, according to appellant's testimony, the high wind and violent motion of the ship caused him to be thrown against a hatch and onto a pile of disarranged chairs, thereby causing the injuries complained of.

All the claims of error presented here relate to the trial court's charge to the jury, both as to commission and omission, and to the disallowance of an award for past maintenance and cure. The first of appellant's contentions is the failure to charge one of the plaintiff's theories of negligence after having been specifically requested to do so. The court's charge on negligence encompassed three somewhat overlapping theories under which defendant could be held liable for plaintiff's injuries if

"* * * the defendant, as employer of the plaintiff, negligently failed to provide him with a reasonably safe place in which to work; negligently failed to give him timely warning of the approach of bad weather and negligently failed to properly instruct him in a safe manner of performing his work."

Plaintiff's attorney took exception and asked the court to charge that defendant could also be found liable if it had been negligent in requiring that plaintiff take the deck chairs below instead of ordering that they be lashed to a rail on deck. This course, it was contended, would have cleared the deck of the loose chairs much more rapidly and would have minimized plaintiff's exposure to the weather and heavy seas and the risks attendant to working on an unprotected deck under such conditions. The trial court at first agreed to give such a charge but, on being erroneously informed by defense counsel that he had already done so, refused the request.

A litigant is entitled to have a trial judge advise the jury of his claims and theories of law if supported by the evidence and brought to the attention of the court. Brown v. Addressograph-Multigraph Corp., 300 F.2d 280 (6th Cir. 1962); Allers v. Bohmker, 199 F.2d 790 (7th Cir. 1952). But the court is not required to give instructions in the language and form requested. If the charge as given is correct and sufficiently covers the case so that a jury can intelligently determine the questions presented to it, the judgment will not be disturbed because further amplification is refused. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); Railway Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693 (1877); Brown v. Addressograph-Multigraph Corp., supra; Tyler v. Dowell, Inc., 274 F.2d 890 (10th Cir. 1960). Our appellate function is to satisfy ourselves that the instructions, taken as a whole and viewed in the light of the evidence, "show no tendency to confuse or mislead the jury with respect to the principle of law applicable". Allers v. Bohmker, supra, 199 F.2d at 792. See also Chicago & N. W. Ry. Co. v. Green, 164 F.2d 55 (8th Cir. 1947).

The plaintiff's case consisted, essentially, of his own testimony and that of four witnesses called by him. One of these witnesses identified certain weather reports and another was a medical expert who testified on the extent of plaintiff's injuries. The testimony of the remaining two witnesses was directed almost exclusively to the negligent character of defendant's conduct in not ordering plaintiff to lash the chairs instead of taking them below. This was virtually the only testimony introduced...