Schell v. Chesapeake & Ohio Railway Company

• Decision Date: 07 May 1968
• Docket Number: No. 11375.,11375.
• Citation: 395 F.2d 676
• Parties: George E. SCHELL, Appellant, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

395 F.2d 676 (1968)

George E. SCHELL, Appellant, v. The CHESAPEAKE & OHIO RAILWAY COMPANY, Appellee.

No. 11375.

United States Court of Appeals Fourth Circuit.

Argued December 7, 1967.

Decided May 7, 1968.

Edwin Jay Rafal, Norfolk, Va. (Harold Gavaris, and Stant, Moss, Rafal, Stokes & Gavaris, Norfolk, Va., on brief) for appellant.

Edward R. Baird, Norfolk, Va. (Baird, Crenshaw & Ware, Norfolk, Va., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

The district judge, although he decided that the tug GEORGE W. STEVENS had not been temporarily withdrawn from navigation and that plaintiff, a shore-based machinist's helper in the marine mechanical department of the defendant, the owner of the tug, was doing the traditional work of a seaman and could maintain a suit against his employer for negligence or unseaworthiness despite the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., nevertheless concluded that defendant was not negligent and the tug was not unseaworthy in the respects in which plaintiff contended caused his personal injuries. We agree with the district judge's conclusions, except as to the unseaworthiness of the tug, for the reasons advanced by him.¹ We conclude that unseaworthiness of the tug, causing plaintiff's injuries, was established as a matter of law; therefore, we vacate the judgment for defendant, and on remand, direct the entry of judgment for the plaintiff on liability and the assessment of damages.

The tug docked at Newport News to permit the renewal of the worm gear and thrust rings of the tug's steering engine, a minor and normal repair requiring only twelve hours for completion. To effect the repair, the crank shaft of the steering engine was removed and taken ashore where the thrust rings and worm gear were removed and replaced.

The steering engine was surrounded by a raised platform reached by a ladder consisting of five steps; and after the crank shaft was removed, plaintiff was instructed to go aboard to clean the platform off. Armed with rags, two buckets and a quantity of burlap, plaintiff had no difficulty in ascending the ladder. According to him the steps were at that time "okay."

Plaintiff engaged in the cleaning operation for more than an hour when he concluded to empty his buckets, by now filled with oil and grease saturated rags, in the fire pit. He proceeded to the head of the ladder, put down his buckets and wiped off his shoes. He examined the top step, turned around and descended the ladder backwards with a hand on each railing. According to his testimony, which was the only evidence about the happening of the accident,² "after I got on the second step, I slipped and my left leg went through the — from the second step and the top step up in my thigh, way above the knee, and the right one went over the side of the ladder." After the accident plaintiff noticed that there was black grease, about the size of a dollar bill, on the dark metal step. At trial, medical evidence was offered to prove that as a result of his fall, plaintiff suffered impaired circulation of both legs with permanent disability.

Reference need be made to only three decisions to establish that plaintiff's testimony was sufficient to show the tug unseaworthy; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Grzybowski v. Arrow Barge Co., 283 F.2d 481 (4 Cir. 1960); Puerto Sequro Cia. Naviera, S. A. v. Pitsillos, 279 F.2d 599 (4 Cir. 1960). In the Mitchell case, which, as we pointed out in both of our decisions cited, squarely and flatly put to rest the transitory unseaworthiness doctrine, a crew member of a fishing trawler was posited entitled to recover, on the theory...