Chesapeake & Ohio Railway Company v. Newman

• Decision Date: 16 April 1957
• Docket Number: No. 12880.,12880.
• Citation: 243 F.2d 804
• Parties: CHESAPEAKE & OHIO RAILWAY COMPANY, Appellant, v. Zernie NEWMAN, Jr., Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

243 F.2d 804 (1957)

CHESAPEAKE & OHIO RAILWAY COMPANY, Appellant, v. Zernie NEWMAN, Jr., Appellee.

No. 12880.

United States Court of Appeals Sixth Circuit.

April 16, 1957.

COPYRIGHT MATERIAL OMITTED

Russell V. Bleecker, Cleveland, Ohio, for appellant.

J. Harold Traverse, Cleveland, Ohio, for appellee, Victor M. Todia, Cleveland, Ohio, on the brief.

Before SIMONS, Chief Judge, and ALBERT LEE STEPHENS and McALLISTER, Circuit Judges.

ALBERT LEE STEPHENS, Circuit Judge.

Appellee, Zernie Newman, brought this action against appellant, Chesapeake & Ohio Railway Company, under the Jones Act,¹ for injuries sustained in the course of his employment as third mate aboard appellant's Carferry Pere Marquette 21, on December 22, 1954. The ship was docked at Ludington, Michigan, awaiting cargo and sailing orders. Many of the officers and crew members lived in Ludington and were on shore leave at their homes. Appellee Newman left the vessel for his home early in the afternoon with orders to return at 4:00 P.M. and to relieve the second mate. Newman returned to the ship as ordered and was at that time informed by the second mate, whom he was relieving, that departure orders for the ship had been fixed for 7:00 P.M. that night. Apparently around 6:30 P.M. Newman became apprehensive as to the lack of preparations by shore personnel to get cargo ready for the vessel, and therefore decided to make inquiry by telephone as to appellant's plans for sailing of the ship and then to phone the master of the ship at his home.

Newman attempted to use a telephone in a booth on the dock near the vessel but found it in use by someone. He waited for the booth to empty for a few minutes but decided to go to the marine shore office of the appellant where another telephone could be used. The office was about 150 feet away from the ship. Newman started walking along the pathway customarily used by the ship's personnel who went ashore on ship's business, or who used it for ingress to or egress from the vessel. There was packed snow and ice on the surface of the pathway which apparently had been visible earlier in the day. Newman had gone a short distance when he came upon an incline that was icy, and when he continued down the incline, he slipped and fell and seriously injured his left knee. The extent of the injury we will later discuss.

The site ashore where the accident occurred was owned, maintained and controlled by the appellant vessel owner. The shoreside activities were both railroad business and marine business. The total surrounding area owned by appellant was approximately ninety acres.

Newman subsequently brought this action against appellant under the Jones Act, alleging negligence on the part of appellant in 1st, failing to provide a safe place to work; 2nd, failing to remove ice and snow from the area involved or otherwise to render the ice and snow innocuous; 3rd, failing to provide sufficient light at the area where plaintiff fell; 4th, permitting the area to remain in a slippery, dangerous and unsafe condition. A trial by jury was had on February 27, 1956. The jury returned a verdict in favor of appellee Newman for $60,000.

The Appeal

Appellant premises its main point on the assertion that any injury which Newman suffered was the proximate result of his own negligence and no negligence was shown on the part of the appellant ship owner. Appellant argues curiously that Newman was the temporary master of the ship and had a special duty, personal to him, to correct dangerous conditions ashore. But when the issue is whether or not appellant was negligent, appellant asserts that it was free of negligence "on the simple ground that it was a physical impossibility for the defendant to maintain the property involved free of snow and ice in the winter season."

Appellant admits that assumption of the risk is no defense to an action brought under the Jones Act and further agrees that the doctrine of comparative negligence is applicable. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075; Imperial Oil, Limited v. Drlik, 6 Cir., 234 F.2d 4; Carter v. Schooner Pilgrim, 1 Cir., 238 F.2d 702.

Because of the insistence of appellant in arguing that Newman is not to be treated as an ordinary seaman, and because some confusion appears in decided cases upon the point, we find it appropriate to discuss several cases dealing with persons aboard ship other than ordinary seamen. The confusion relates to the legal effect of a finding or allegation that a master or officer of a ship has breached a duty owing by him to his employer. In Walker v. Lykes Bros. S. S. Co., Inc., 2 Cir., 1952, 193 F.2d 772, it was indicated that where the master of a ship contributes to his own injury by reason of a breach of his supervisory duties owed to his employer, the breach which contributed to the injury is not merely "contributory negligence" resulting in mitigation of damages under the Jones Act but constitutes a bar to the master's recovery. The First Circuit, in Boat Dagny, Inc., v. Todd, 1955, 224 F. 2d 208, 211, disagreed with "this refinement between the two species of contributory fault" and held that any negligence of the master would not necessarily be a bar to recovery but would only be useful in determining comparative negligence. However, the Second Circuit later, in Dixon v. United States, 1955, 219 F.2d 10, held that Walker v. Lykes Bros. S. S. Co., Inc., was only an exposition of the rule that an employee may not recover against his employer for injuries occasioned by his own neglect of some independent duty arising out of the employer-employee relationship.² While we do not disagree with the reasoning used in Dixon v. United States, supra, we are of the opinion that a more complete solution of the problem, where there is some breach of duty owing by an employee, is to base the result on causation. The explanation set out in Dixon v. United States, supra, does not encompass the factual situation involving a breach of duty by the employee plus other combining or contributing negligence on the part of the employer. If the breach of duty owed by the employee to the employer was the sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of the employer's was in the chain of causation. But if the employee was injured because of his employer's negligence which combined with his own neglect of duty to his employer, then the doctrine of comparative negligence would be applicable.

In the instant case, there was clearly sufficient evidence in the record to constitute jury questions whether (1) Newman was solely negligent, (2) the employer was negligent, (3) both were negligent. Newman testified that the place where he fell was slippery due to ice, that the surface was sloping, that there was inadequate illumination and that there was no salt, sand, cinders or other abrasives used by defendant-appellant to provide a safe walkway to the marine office from the ship. Newman was corroborated in this testimony by Roy Frase, the wheelsman from the vessel, who responded to his call for help and who was the first person to reach him after his fall. We find without merit the contention of the employer, not that the icy condition did not exist, but that the employer owed no duty to keep the entire ninety acres free of snow and ice because it would be impossible to do that³ It was not claimed that the employer had such a duty, but rather that he had the duty of keeping open a reasonably safe passage-way of the 150 feet from the ship to the marine office. We do not find it error that the jury found the employer negligent in his duty to the employee. We note the evidence in part in the margin.⁴

Appellee additionally charged appellant with negligence in failing to adequately illuminate the spot where he fell. The place of the fall was approximately 75 feet from the dock lights and 140 feet from the marine office lights. But neither the dock lights nor the marine office lights illuminated the spot where Newman fell. Adjacent tower lights likewise did not light the spot. Appellant preferred to infer that since Newman knew the ice was there, he would have fallen even though it were daylight. But Newman testified that the accident would not necessarily have happened had it been daylight.

The evidence supports the inferential finding of negligence on the part of the employer in that it furnished inadequate lighting, failed to take steps to render the ice and snow innocuous and generally failed to provide a reasonably safe pathway to and from the ship to the marine office. The contention that the jury should not have been given the question as to whose negligence was the proximate cause of Newman's injury is meritless. The appellant cites our decision in Detroit, T. & I. R. Co. v. Banning, 173 F.2d 752, a case under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. That case is inapposite. There a brakeman sought recovery because muddy conditions in defendant's yard resulted in muddy boots causing him to slip and injure himself. Judge Miller, speaking for the Court, denied recovery to the brakeman, but in doing so stated that "reasonable steps must be taken to counteract or avoid the danger." In that case there was no evidence that reasonable steps were not taken, and it was further pointed out that the injured workman had ample opportunity to clean his boots prior to the accident. Other cases cited by appellant are either not in point or are clearly distinguishable on their facts. Ouzts v. A. P. Ward & Son, Inc., D.C.Fla., 146 F.Supp. 733, is not in point since it was not a jury trial, and it was therein held that there was no negligence on the part of the employer and that the injury was caused by the sole negligence of the plaintiff.

Alleged Error In Charge To Jury

Appellan...