Asaro v. Parisi, 5837.
| Decision Date | 16 January 1962 |
| Docket Number | No. 5837.,5837. |
| Citation | 297 F.2d 859 |
| Parties | Samuel ASARO, Plaintiff, Appellant, v. Carlo PARISI, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Morris D. Katz, Boston, Mass., for appellant.
James A. Whipple, Boston, Mass., with whom Kneeland & Splane, Boston, Mass., was on brief, for appellee.
The plaintiff-appellant, a seaman and fisherman, was injured in the course of his employment as a member of the crew of the defendant-appellee's fishing vessel when he undertook to hoist a heavy net from a wharf in Gloucester, Massachusetts, at which his vessel was moored, to the deck by means of what is called a gilson.1 He filed a complaint in the court below in three counts, one for negligence under the Jones Act, 46 U.S.C.A. § 688, a second for unseaworthiness under the general maritime law and a third for maintenance and cure. The first two counts were tried by jury which by direction returned a special verdict. In answer to specific questions submitted by the court without objection, the jury found that the defendant had been negligent and that his negligence was a proximate cause of the plaintiff's injuries, that the defendant's vessel was unseaworthy but that its unseaworthiness was non-causal, that the plaintiff's own negligence had contributed to his injuries to the extent of 75% and that his total damages amounted to $12,000. On this verdict the court below entered judgment for the plaintiff on the first count for $3,000 and judgment for the defendant on the second count. It also entered a judgment for the plaintiff on the third count for maintenance and cure.
This appeal by the plaintiff below is directed at the above judgment only insofar as counts one and two are concerned. That is to say, he challenges the propriety of the jury's verdict for the defendant on count two and its finding of his 75% contributory negligence on count one. His contentions are that the court below committed reversible error in its charge and in the admission of certain evidence.
There is no substantial dispute over the basic evidentiary facts. Stated most favorably to the plaintiff they are as follows: The vessel's net having been damaged on a previous trip and mended by crew members on the wharf, the plaintiff was ordered by the mate to participate in hoisting it back on board in preparation for the next trip. He was told to go to the port drumhead of the winch and use the gilson for that purpose. Crew members on the wharf placed the hook on the end of the gilson through a strap around the rolled-up net and passed the word to hoist the net on board. Upon receipt of a signal to go ahead from another crew member, the plaintiff took about four turns of the gilson around the port drumhead and taking in the slack hoisted the net from the wharf and swung it over the forward deck, where two crew members stood to receive it and guide it into position for stowing along the rail. At this juncture a steel spur or splinter on the gilson, which had been in use for some time and was worn, pierced the plaintiff's right hand causing him instinctively to let go with that hand. He was unable to keep sufficient strain on the gilson with only his left hand and as a result the turns taken around the drumhead began to jump off. Fearing for the safety of the men on the foredeck, who he said were standing under the net, the plaintiff grabbed the gilson again with his right hand in the endeavor at least to slow the descent of the net but, without having any mechanical advantage from the winch he could not do so, for the net weighed between one and two thousand pounds. The gilson ran through the plaintiff's clenched hands until his left hand was caught on the steel ends of an untaped splice and he was lifted and flung forward onto the fore deck and against an iron bar near the hatch.
The plaintiff-appellant contends that on this evidence he cannot as a matter of law be charged with contributory negligence because it conclusively establishes that he acted in an emergency not created by his own antecedent negligence in an attempt to rescue the two crew members on the fore deck from their peril from the falling net. This contention rests upon a misunderstanding of the emergency doctrine.
The plaintiff's freedom from antecedent negligence is not altogether clear. It could be found that he knew the men on the fore deck were standing in a place of danger when he started to hoist the net and there is no evidence that he shouted to them to get out from under. However, even if we assume that the emergency was not created by the plaintiff's fault, it would not follow as a matter of law that the plaintiff could not be charged with subsequent negligence. The fact that one acts in an emergency he has not caused, even to save another from danger, is only a factor or circumstance to be considered in determining due care, it being quite naturally assumed that the ordinary man of average prudence would not and could not reasonably be expected to act under tension with the same care, forethought and deliberation as ought to be expected of such a person when not acting under stress.
This is the rule clearly stated by the American Law Institute, Restatement, Torts § 470, upon which the plaintiff mistakenly relies, which reads: "The fact that the plaintiff is acting in an emergency not created by his own antecedent negligence is a factor to be taken into account in determining whether his conduct is free from contributory negligence." The court's charge to the jury in accordance with this rule is correct.
The plaintiff-appellant also objected to a portion of the charge in which the court told the jury that it could not find the plaintiff guilty of contributory negligence if it found that in using a defective, unsafe or inadequate gilson he was acting under the orders of his superior " * * * unless you find that his superiors did not know of the defective condition or in the exercise of reasonable care would not have known of the defective condition and you find that the plaintiff in the exercise of due care should have told his superiors about it."
In vacuo this instruction might, as the appellant contends, be misunderstood as informing the jury, contrary to the rule in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), that a seaman is under some sort of duty to discover and report unseaworthy conditions on his vessel and for breach of that duty is barred from recovery. In its context, however, we do not think the instruction reasonably could or would have been so misunderstood, for before it was given the jury had been fully, carefully, accurately and without objection instructed as to...
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