412 F.2d 958 (5th Cir. 1969), 25559, Sanford Bros. Boats, Inc. v. Vidrine

Docket Nº:25559.
Citation:412 F.2d 958
Party Name:SANFORD BROS. BOATS, INC., Appellant, v. Dalvis VIDRINE, Appellee.
Case Date:May 15, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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412 F.2d 958 (5th Cir. 1969)

SANFORD BROS. BOATS, INC., Appellant,

v.

Dalvis VIDRINE, Appellee.

No. 25559.

United States Court of Appeals, Fifth Circuit.

May 15, 1969

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[Copyrighted Material Omitted]

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Joaquin Campoy, of Campoy & Horne, New Orleans, La., for defendant-appellant.

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John L. Avant, Baton Rouge, la., J. Wendel Fusilier, Ville Platte, La., of Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, La., Fusilier, Pucheu & Soileau, Ville Platte, La., for complainant-appellee.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District judge.

GOLDBERG, Circuit Judge:

On this appeal from a Jones Act judgment for a seaman, the appellant-employer, aside from asserting a typical miscellany of cavils, lays proper claim to several trial court errors.

On September 18, 1965, appellant's tug, the D. A. LITTLE, and the barge, SANFORD BROS. NO. 1, owned by a companion corporation, were together in the Gulf of Mexico about four miles from shore. Their mission was to repair underwater pipelines and offshore oil structures that had been damaged by hurricane 'Betsy.' Due to the arrival of rough weather and signs of an approaching storm, Robert Ammon, the captain of the tug, decided to take the barge in tow and move it into more sheltered waters. To implement this decision, Ammon ordered that the four anchors which kept the barge in place be hauled up and secured against the sides. Three anchors were successfully recovered, but the fourth snagged in one of the offshore oil structures.

When initial efforts to free the tangled anchor failed, Captain Ammon decided to change his towing apparatus before dealing again with the fouled anchor. The towing apparatus consisted of a polyethylene or polypropylene towline extending from the stern of the tug rearwards toward the bow of the barge. About fifteen feet in front of the barge the towline meets a heavy metal shackle, and there divides into two steel cables that are attached to opposite sides of the barge. These cables are collectively known as the 'tow bridle,' and it was this tow bridle which Captain Ammon had decided to replace by a single towing cable.

Changing the bridle involves certain procedures. The tug must be in front of the barge, backing slowly toward it, while men on the stern of the tug haul in the towline. When the towline and shackle have been successfully retrieved, the bridle must be detached from the deck of the barge so that it too may be hauled aboard the tug. Captain Ammon, who was supervising this operation, ordered a man on the barge to unfasten the port segment of the bridle. The first such operation was carried out without incident, but as the second cable was being unfastened, it was dropped overboard and caught on one of the 5000 pound anchors hanging against the side of the barge. In this position it created an imminent danger of becoming tangled in the propeller of the tug as it was backing down. Plaintiff, Dalvis Vidrine, and three other men on the stern of the tug endeavored to free the snagged section of the bridle cable by hauling on it. However, the only result of their efforts was that Vidrine sprained his back, causing the injury which gave rise to the present suit.

Following his injury, Vidrine reported to Captain Ammon who noted the injury in his 'log book.' Vidrine was then taken ashore at Morgan City, and reached his home in Ville Platte, Louisiana the following day. Upon his arrival, Vidrine placed himself under the care of his family doctor, who had treated him for a previous back injury. The doctor ordered Vidrine placed in a private hospital, where he remained intermittently for some two and one-half months. Appellant, Sanford Brothers Boats, Inc., then notified Vidrine's attorney that it would authorize no further treatment of Vidrine unless advised in advance. If further treatment should be necessary, appellant indicated that it would make arrangements at the Marine Hospital. For a while, however, Vidrine required no additional treatment.

Eight months later, while working for a different employer, Vidrine again suffered back pains. Without notifying

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appellant or seeking help at the Marine Hospital, he put himself once more under the care of his family physician. This time a myelogram indicated the existence of a ruptured intervertebral disc, and Vidrine underwent surgery, apparently with successful results.

On July 19, 1966, Vidrine brought suit in federal district court against the owner of the tug, Sanford Brothers Boats, Inc. (Sanford Bros.), seeking damages for negligence under the Jones Act, 46 U.S.C.A. § 688, 1 and for unseaworthiness under general maritime law. Additionally, Vidrine asserted a cause of action for maintenance and cure until such time as he reached maximum medical recovery.

At trial Vidrine attempted to show that due to the negligence of the seaman in not carrying the tow bridle to the center of the barge before releasing it, the cable became entangled in the anchor and created an emergency in rough seas. His theory was that had it not been for this negligence, he would never have had to pull the cable free and would never have sprained»his back. He further argued that the tug was unseaworthy because it lacked a sufficient crew, a capstan, and a spare towline. All of Vidrine's claims and Sanford Bros.' defenses were submitted to a jury with appropriate instructions. The jury returned a general verdict for Vidrine in the amount of $60,000, including therein $2,348.41 for medical expenses already incurred.

On this appeal Sanford Bros. urges a medley of errors, among them the proposition that the jury verdict was contrary to law and against the weight of the evidence. Appellant finds no basis in the record from which the jury might have concluded that the cable was negligently dropped overboard, or that the dropping of the cable proximately caused Vidrine's injuries, or that the tug was unseaworthy. Appellant submits that these inadequacies in the record justify setting the verdict aside and ordering a new trial.

I.

SUFFICIENCY OF THE EVIDENCE

In determining whether there was sufficient evidence to go to the jury in Jones Act cases we are mindful of the Supreme Court's admonition that 'the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.' (emphasis added.) 2 Rogers v. Missouri Pac. R. Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499. Appellant argues that even under this liberal standard there was insufficient evidence that the dropping

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of the bridle cable constituted negligence. With this contention we must disagree.

A review of all the evidence indicates that testimony relative to the bridle cable was of two kinds: direct testimony given at trial and testimony derived from the pretrial deposition of the tug's captain, Robert Ammon. Putting to one side the deposition testimony as of dubious value for any purpose other than impeachment, 3 the record is still sufficient to warrant a jury determination of negligence. The facts elicited on direct examination of the Captain indicated that the customary manner of detaching a bridle cable required that the cable be carried to the center of the barge before being released. 4 The evidence further revealed that this procedure was not followed at the time the cable became snagged in the anchor, 5 but that instead the cable was dropped over the side of the barge, where numerous protuberances increased its chances of fouling. Plaintiff introduced little or no evidence apart from the Captain's pretrial deposition to explain why the seaman on the barge departed from the correct and customary method of releasing the bridle cable. On the other hand, the Captain speculated that the cable might have been pulled out of the seaman's hand by a wave before it could be carried to the center of the barge. Appellant urges that the Captain's conjecture dispelled the possibility of negligence and that, in any event, there was no countervailing evidence in the record upon which the jury could have based a contrary result. This argument misconceives the function of a jury in a Jones Act case.

Sufficient evidence to sustain a jury verdict only requires that there be facts from which a jury might infer negligence. Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668. Where there is a suddendeparture

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from a well-established practice of safety, and where both the practice and the departure are clearly presented by the evidence, it is not also incumbent upon the plaintiff to exclude every other hypothesis except negligence. cf. Tennant v. Peoria & Pekin Union R. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. 'Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.' (emphasis added). Schulz v. Pennsylvania R. Co., 350 U.S. at 526, 64 S.Ct. at 610.

In Tennant v. Peoria & Pekin Union R. Co., supra, the Supreme Court considered an FELA case involving the death of a switchman in the course of his employment. The case was submitted to the jury on the theory that the switchman's death was caused by the failure of an engineer on one of defendant's trains to ring his warning bell as required by a safety rule of the railroad. No reason for the engineer's failure to ring the bell was ever offered. In commenting upon whether the engineer's omission was negligence, and...

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