Koserkoff v. Chesapeake & Ohio Railway Company

• Decision Date: 05 June 1970
• Docket Number: No. 19946,20016.,19946
• Citation: 427 F.2d 1049
• Parties: Staphan L. KOSERKOFF, Plaintiff-Appellee and Cross-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

427 F.2d 1049 (1970)

Staphan L. KOSERKOFF, Plaintiff-Appellee and Cross-Appellant, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellant and Cross-Appellee.

Nos. 19946, 20016.

United States Court of Appeals, Sixth Circuit.

June 5, 1970.

Walter A. Kleinert, Detroit, Mich. (Robert A. Straub, Southfield, Mich., on the brief), for Chesapeake & Ohio Railroad.

Arthur Roth, Miami, Fla. (Victor G. Hanson and James Finn, Detroit, Mich., on the brief), for Koserkoff.

Before CELEBREZZE and COMBS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

The Chesapeake and Ohio Railway Company appeals from a judgment for $22,500 in favor of plaintiff, Staphan L. Koserkoff, entered upon a jury verdict in said amount. Appellant, the C & O, asserts that a verdict should have been directed in its favor because the evidence disclosed that, as a matter of law, plaintiff was guilty of contributory negligence, and that such evidence was insufficient to permit a jury to find that the railroad was guilty of any negligence that was a proximate cause of plaintiff's injuries. Plaintiff's cross appeal charges that interest on his judgment should accrue from date of filing the complaint instead of from the date of judgment.

We reverse and remand for entry of judgment for defendant. The cross-appeal will be dismissed.

The allegedly tortious conduct of the railroad occurred at Toledo, Ohio, and the suit was commenced and tried in the United States District Court for the Eastern District of Michigan, Southern Division. The conflict of law rules of Michigan, the forum state, determines what substantive law will control. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 497, 61 S.Ct. 1020, 85 L. Ed. 1477 (1941); Glens Falls Ins. Co. v. Danville Motors, Inc., 333 F.2d 187, 191 (6th Cir. 1964). Michigan holds that the substantive law of Ohio, the place of the casualty, will be followed. Petrusha v. Korinek, 237 Mich. 583, 589, 213 N.W. 188 (1927).

On October 3, 1962, plaintiff Koserkoff, then 73 years old, was employed as a night porter or cook aboard the SS Schoelkopf, a vessel owned by the American Steamship Company. He had been so employed for several years. The Schoelkopf berthed at the C & O dock in Toledo, Ohio, at about 7:30 in the morning. Koserkoff was familiar with this dock, including the C & O crane which operated upon railroad tracks parallel to the docked ship. There was evidence that the crane was already in use in the unloading of the Schoelkopf. Members of the ship's crew, including plaintiff, were about to go ashore. A watchman, also a member of the crew, lowered a ladder over the side of the ship to the dock, a distance of about 12 feet. At least three members of the departing crew climbed down the ladder to the dock without incident. Two other members of the crew proceeded down the ladder but, because of the nearness of the C & O crane to the bottom of the ladder, stepped off the ladder on to the hopper of the crane and then jumped from there to the ground, a distance of some six or eight feet. The plaintiff followed his fellow crew members, climbing down the ladder, stepping on to the hopper of the crane, and then jumping to the ground. The plaintiff, however, was injured — he broke his heel — when he landed on the surface of the dock. Whatever conflict there may be in the evidence, it is clear that the presence of the crane at or near the foot of the ladder either necessitated or suggested the route taken by plaintiff and his fellow crew members. It is also a fair inference that the brittleness of his bones foreclosed the 73 year old plaintiff's successful imitation of the conduct of his younger companions.

This suit began as a maritime action by Koserkoff against American Steamship Company, wherein the complaint asserted a cause of action arising out of the Merchant Marine Act, 46 U.S.C. § 688 (The Jones Act). He charged that his injuries were brought about by the negligence of the owners of the boat in that:

"Defendant failed to provide a watch at the head of the ladder and failed to warn members of the crew * * * that the crane was in operation in the area.

"Defendant further failed to warn the operator of the crane that crew members, particularly the plaintiff, were leaving the vessel at the aforesaid time and place."

In its answer to the foregoing, the American Steamship Company charged defensively:

"That any accident or injury plaintiff may have sustained while in the employ of defendant was caused or contributed to by his own carelessness, inattention and negligence."

Stipulating with American Steamship Company, plaintiff later joined the appellant, Chesapeake and Ohio Railway Company, as a defendant. The amended complaint asserted a cause of action against appellant under the general admiralty and maritime law and under the common law. The negligence charged was substantially that charged to American Steamship Company, but also averred that the ladder used was owned by the C & O. The latter statement was not true.

A settlement was made, however, between plaintiff and the Steamship Company by the latter's payment to Koserkoff of $1,928 for maintenance and cure and $7,500 damages. A covenant not to sue was given to American Steamship Company by Koserkoff. The settlement agreement provided that plaintiff would not dismiss or settle his suit against the C & O without consent of the Steamship Company; that if plaintiff recovered more than $25,000, but less than $32,500, plaintiff was to pay to the Steamship Company the excess of his recovery over $25,000; that if his recovery exceeded $32,500, he was to pay the Steamship Company $7,500; that if his recovery was less than $25,000, plaintiff would not repay any part thereof to the Steamship Company. American Steamship Company was thereupon dismissed from the case.

The case was tried and submitted to the jury upon common law negligence. Under the law of Ohio, contributory negligence is a defense in bar, as it is under the law of Michigan.

Plaintiff was familiar with the C & O dock, his ship having docked there about a dozen times during each of several summers while he was employed on the ship. As, stated, three of the six crew members who used the ship's ladder had completed their trip to the dock. Koserkoff, however, observed that the two who immediately preceded him stepped from the ladder onto the crane and then jumped to the ground. It is clear that the nearness of the crane to the bottom of the ladder necessitated, or suggested, the route followed by plaintiff and two of his crew mates. Plaintiff testified that the C & O crane was standing still when he started down the ladder, was standing still when he was about three-quarters of the way down, and was standing still when he stepped onto the crane. He said there was no movement of the crane at the time he jumped. He said that when he was on the crane someone hollered "get off that hopper". He became frightened and jumped. He did not know who hollered at him and there was no evidence that any employee or agent of the C & O was the one who hollered to plaintiff. Plaintiff was not asked, nor did he give any testimony, that except for the shouted command he would have waited on the hopper until movement of the crane allowed him to go to the ground on the ladder, or otherwise than jumping. He said he was frightened by the shouted command. Plaintiff gave an affirmative answer to the question, "Now * * * Mr. Koserkoff, when the ladder was lowered from the Schoelkopf down to the ground that crane was there, right there, standing still then wasn't it?"

We are of the view that the above testimony did not disclose that negligence of defendant could be found to have been a proximate cause of plaintiff's injuries. We believe also that it portrays that plaintiff's voluntary act in jumping from the crane was the immediate cause of his injuries, and that no negligence of defendant was the cause of his jumping. Before plaintiff had reached the place on the ladder from which he stepped onto the crane, he became aware that descent on the ladder to the dock itself could not be accomplished except by following the lead of the crew members who chose to jump from the crane without waiting for the crane to be moved out of the way. When plaintiff became aware of the situation, he had available to him two places of safety — one to remain on the ladder until the crane was moved away from it, or to remain on the crane, neither of which was shown to be a place of danger. His testimony was, however, that he heard someone holler to get off the crane. Neither the original nor the amended complaint makes any claim that an exhortation to jump caused plaintiff to do so. There was no evidence that defendant was responsible for such shout. When testimony to this effect was given at the trial, objection was made to it and plaintiff's counsel very correctly observed:

"But I don\'t think that referring to the shouting is the negligence, anyway. I think he is entitled to tell what he heard, what caused him to get off the crane."

Plaintiff's brief to this Court, however, takes the position that a jury could draw a legitimate inference that the shouted command must have come from the crane operator or some representative of the defendant. We find no circumstance from which such an inference could be legitimately drawn. No such claim was made by the pleadings. Plaintiff's counsel admitted that such shouting was no part of plaintiff's claim of defendant's negligence. We hold that this circumstance cannot be employed by plaintiff to make out a case of defendant's negligence or to ameliorate the clear fact that the activity which caused the injury to plaintiff was his own voluntary act.

Under his clear testimony, plaintiff, while on the ladder, had become aware that the position of the crane would not allow him to complete his trip to the dock on the ladder. At that time he could have chosen...