Balado v. Lykes Bros. SS Co., 142
| Decision Date | 06 February 1950 |
| Docket Number | Docket 21529.,No. 142,142 |
| Citation | 179 F.2d 943 |
| Parties | BALADO v. LYKES BROS. S. S. CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul C. Matthews, New York City, and Robert E. Connolley, New York City, for plaintiff.
Tompkins, Boal & Tompkins, New York City, and Arthur M. Boal, New York City, for defendant.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
This action was originally brought under the Jones Act, 46 U.S.C.A. § 688, by a fireman aboard the defendant's vessel Genevieve Lykes. About March 10, 1944, heavy seas were encountered by the ship and the iron door leading from the deck to the crew's messroom was found to be in a sprung condition, whereby sea water was entering the messroom. The plaintiff had gone to his quarters and was asleep. About midnight the chief engineer woke him up and ordered him to help bail out the water. He complied, and worked for more than an hour bailing out water which splashed back and forth with the rolling of the ship and — according to his testimony — soaked him from head to foot. He began to feel sick later than night and reported that fact to the engineer. He nevertheless continued to attend his watches until April 7, 1944, when he was hospitalized at the United States Public Service Hospital, Panama Canal Zone, and a diagnosis of pneumonia was made. On May 11, 1944, he was discharged from the hospital as well. Later, however, he developed a lung abcess. On July 15, 1944, he entered the Marine Hospital at Staten Island, and had some fourteen operations there for the collapsing of a lung and the removal of ribs on one side of his chest. He has been in the hospital, with but short interruptions for the past five and one-half years.
The plaintiff in his complaint alleged that the safety statute, 46 U.S.C.A. § 673, was violated, which so far as material is set forth in the margin,1 in that (1) the defendant compelled him to work in the deck department in order to bail out the messroom although he had been regularly assigned to the engine-room, and (2) required him on that day to work more than eight hours. On appeal, he argues (1) that the trial court erred in its instructions to the jury as to the applicability of the safety statute, and (2) that the trial court refused to instruct the jury that the defendant was absolutely liable for any damages resulting from unseaworthiness.
After all the evidence was in the plaintiff asked for leave to amend the complaint by adding a claim that the vessel was unseaworthy because the door to the messroom was sprung so as to let in the sea water and that he was entitled to recover any damages caused by the unseaworthiness. The request was granted, whereupon the court proceeded to charge the jury that the plaintiff could recover, either under the Jones Act for negligence, if found to have caused his injuries, or for unseaworthiness of the vessel, if that was found to be the proximate cause. We think the charge in respect to liability for negligence was favorable to the plaintiff. The jury was allowed to determine whether the chief engineer properly exercised his discretion in calling upon the plaintiff to do work other than that for which he was primarily assigned, namely, in the engine room. It seems hard to suppose that there was not an emergency which justified the engineer in calling on the plaintiff to help bail out the water in the messroom or that on the evidence there was any improper exercise of discretion. There can be no doubt that the condition of the messroom, with a considerable depth of sea water swishing back and forth, might well be regarded as an unfit place in which to serve meals and dangerous to the health and comfort of the crew, and that the chief engineer might be thought to have the discretion to call upon the plaintiff to bail out the messroom and work for more than eight hours in so doing if he regarded the performance "necessary for the safety of the vessel, her passengers, crew, or cargo."
The principal question is whether the judge was right in refusing to charge, as the plaintiff requested, that if the vessel was found to be "unseaworthy and that unseaworthiness was the proximate cause of the plaintiff's illness, *...
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Jenkins v. Roderick, Civ. A. 57-329.
...judgment against the seaman on the unseaworthiness count. McCarthy v. American Eastern Corp., 3 Cir., 175 F.2d 724; Balado v. Lykes Bros. S. S. Co., 2 Cir., 179 F.2d 943, 945. This is not a sustainable proposition. While it is true that an adverse judgment on an unseaworthiness count would ......
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Troupe v. Chicago, D. & G. Bay Transit Co.
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