Butler v. Whiteman
| Decision Date | 14 April 1958 |
| Docket Number | No. 200,M,200 |
| Citation | 78 S.Ct. 734,356 U.S. 271,2 L.Ed.2d 754 |
| Parties | Mary Harris BUTLER, Widow of Dupree Butler, et al., petitioners, v. George W. WHITEMAN. isc |
| Court | U.S. Supreme Court |
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed and the cause is remanded for trial. We hold that the petitioner's evidence presented an evidentiary basis for jury findings as to (1) whether or not the tug G. W. Whiteman was in navigation, Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 373, 77 S.Ct. 415, 417, 1 L.Ed.2d 404; Carumbo v. Cape Cod S.S. Co., 1 Cir., 123 F.2d 991; (2) whether or not the petitioner's decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688; Senko v. LaCrosse Dredging Corp., supra; Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687; and (3) whether or not employer negligence played a part in producing decedent's death. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668.
For reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, Mr. Justice Frankfurter is of the view that the writ of certiorari is improvidently granted.
I think the evidence is insufficient to raise a question for the jury as to whether petitioner's decedent at the time of the accident was a seaman within the purview of the Jones Act.
Respondent was the owner of a wharf, barge and tug, all situated on the Mississippi River. The barge was moored to the wharf, and the tug was lashed to the barge. On October 7, 1953, the decedent met death by drowning in unclear circumstances. He was last seen alive running across the barge to the tug, and it was petitioner's theory of the case that the decedent had fallen into the river between the barge and the tug, and that respondent was liable under the Jones Act because of his negligent failure to provide a gangplank for crossing between the two vessels.
For some months before the accident the tug had been withdrawn from...
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