Armstrong v. Commerce Tankers Corp., 555
| Decision Date | 20 March 1970 |
| Docket Number | Docket 33852.,No. 555,555 |
| Citation | 423 F.2d 957 |
| Parties | Ernest A. ARMSTRONG, Plaintiff-Appellant, v. COMMERCE TANKERS CORP. and Empire Ship Agents & Brokers Corp., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
John F. X. McKiernan, New York City (Paul C. Matthews and George J. Engelman, New York City, on the brief), for plaintiff-appellant.
Robert S. Blanc, Jr., New York City (Hill, Betts, Yamaoka, Freehill & Longcope and Robert C. Buff, New York City, on the brief), for defendants-appellees.
Before LUMBARD, Chief Judge, ANDERSON, Circuit Judge, and CROAKE,* District Judge.
The plaintiff, Ernest A. Armstrong, newly signed on as a seaman aboard defendant's vessel, SS Thalia, went off duty at 0800 April 20, 1967, while the ship was anchored in Singapore harbor. On invitation he went to the quarters of a shipmate, named Darcy, and sat on a bunk to the right of the open door. In the quarters at the time were Darcy, a white-haired wiper, and a machinist, also crew members. A general conversation ensued. The machinist left, and the three remaining talked about learning to pilot an airplane. The white-haired wiper took offense at something said by Armstrong, and the plaintiff got up to leave. Darcy put his hand on Armstrong's shoulder and said, "Yes, you had better go." The door, which swung into the cabin, was wide open. As Darcy put his hand on Armstrong's shoulder, the latter, who was headed for the doorway and two to two and a half feet away from it, lost his balance and reached out for support. Though the door jamb was on his right, he apparently reached over his head with his left hand and grasped the door jamb in such a way that his left thumb was between the hinged edge of the door and the doorframe. While he was so situated he claims the door slammed shut on his thumb "with force" and produced a compound fracture. At that time Darcy was about two feet behind and to the left of Armstrong. The plaintiff did not know in what part of the quarters the white-haired wiper was, but plaintiff testified he did not hit the door himself nor did he see anyone else near the door because, he said, he was facing the other way. There were slight swells in Singapore harbor at the time, but the plaintiff said they did not move the ship. He could not explain how or why the door moved.
The plaintiff at the trial had expressly disclaimed any reliance upon the theory of res ipsa loquitur. He did not call Darcy or anyone else who had been present at the time the incident occurred, as witnesses, but relied on his own testimony alone. The defendants rested at the end of the plaintiff's case and moved for a directed verdict on which the court deferred decision.
The jury returned a special verdict finding that (1) the negligence of one of defendants-appellees' employees was the proximate cause of Armstrong's injury; (2) there was no unseaworthiness; and (3) Armstrong was not contributorily negligent. It awarded the plaintiff $12,000 in damages.
The defendants-appellees moved for judgment n. o. v., and the trial court granted the motion on the ground that proof of negligence was wholly lacking. The sole issue on appeal is whether or not there was sufficient evidence from which the jury could reasonably infer that one of Armstrong's fellow crew members slammed the door shut on his thumb.
The only testimony in the case was that of the plaintiff. A little over half of it was taken up with cross-examination and some re-direct on the question of plaintiff's use of alcoholic beverages and the history of his recurrent drinking problems. The court fully charged on the matter of intoxication and its relationship to contributory negligence. The jury specifically found there was none. This appears to have been the principal point of conflict in the trial court; and the interrogation relative to the persons and circumstances just prior to and subsequent to the fracturing of Armstrong's left thumb are, particularly from the purview of a reviewing court, unclear and unsatisfactory. No plan or drawing showing either the size and shape of Darcy's quarters or the location of the door and the furnishings was put...
To continue reading
Request your trial
-
Duchesne v. Sugarman
...impartial judgment would not arrive at a verdict against him. 5 J. Moore, Federal Practice, P 50; 2(1) (2d ed.)" Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970). For the reasons discussed below, neither of these......
-
County of Suffolk v. Long Island Lighting Co.
...Corp., 534 F.2d 1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976); see Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959-60 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970). Applying this standard, we conclude that the LILCO d......
-
Brooklyn Navy Yard Asbestos Litigation, In re
...conduct was lacking is fully supportable, and the district court properly denied plaintiffs' motions. See Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.) (Judgment as a matter of law "will be granted only if ... the evidence is so strongly and overwhelmingly in favor of the......
-
Lee v. Joseph E. Seagram & Sons, Inc., 72 Civ. 232 (CHT).
...reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him." Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970). See also Sotell v. Maritime Overseas Inc., 474 F.......