318 F.2d 890 (2nd Cir. 1963), 261, Oliveras v. United States Lines Co.

Docket Nº:261, 27458.
Citation:318 F.2d 890
Party Name:Guillermo OLIVERAS, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant-Appellee.
Case Date:June 05, 1963
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 890

318 F.2d 890 (2nd Cir. 1963)

Guillermo OLIVERAS, Plaintiff-Appellant,



No. 261, 27458.

United States Court of Appeals, Second Circuit.

June 5, 1963

Argued March 12, 1963.

Page 891

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

Page 892

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...

To continue reading