Chaney v. City of Galveston

• Decision Date: 21 November 1966
• Docket Number: No. 23222.,23222.
• Citation: 368 F.2d 774
• Parties: W. F. CHANEY, Appellant, v. CITY OF GALVESTON et al., Appellees. EARL J. SMITH & CO., Inc., Appellant, v. CITY OF GALVESTON et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 774 (1966)

W. F. CHANEY, Appellant, v. CITY OF GALVESTON et al., Appellees.

EARL J. SMITH & CO., Inc., Appellant, v. CITY OF GALVESTON et al., Appellees.

No. 23222.

United States Court of Appeals Fifth Circuit.

November 21, 1966.

Sidney Ravkind, Houston, Tex., Mandell & Wright, Houston, Tex., for W. F. Chaney.

Edward W. Watson, Galveston, Tex., J. P. Forney, Jr., Houston, Tex., Eastham, Watson, Dale & Forney, Galveston, Tex., of counsel, for Earl J. Smith & Co. Bryan F. Williams, Jr., V. W. McLeod, Royston, Rayzor & Cook, Galveston, Tex., for Southern Stevedoring & Contracting Co., Inc.

McLeod, Alexander, Powel & Apffel, Galveston, Tex., for appellee, City of Galveston.

Before WISDOM, BELL and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge.

Appellant, W. F. Chaney, is an injured longshoreman who filed this libel in admiralty against the City of Galveston and Earl J. Smith & Company, Inc., owner and operator of the SS SMITH DEFENDER. A cross libel was filed by Smith against the City and an impleading petition was filed by Smith against Southern Stevedoring & Contracting Company, Inc. From an adverse judgment of the district court dismissing his suit, libelant has appealed.

Detailed findings of fact were made by the trial judge who held that libelant's injuries were solely and proximately caused by his own negligence. The district court found that on March 20, 1963, libelant Chaney, a longshoreman, was a walking foreman employed by Southern Stevedoring aboard the SMITH DEFENDER, owned and operated by Smith. Southern Stevedoring was performing stevedoring services for Smith in the loading of the vessel with bulk grain at the grain elevator owned and operated by the City of Galveston. The vessel was being shifted at the time into a berth at a pier alongside the grain elevator and a grain spout of the elevator was being spotted by libelant on board the vessel over Hatch No. 2.

Chaney's claim was based on unseaworthiness of the vessel and the negligence of its owner, and against the City because of the breaking of an alleged defective telescoping cable on the grain spout which was being used in the loading of grain. Smith also impleaded Southern asking indemnity under the stevedore's warranty, should Smith be found liable; and Smith's cross libel sought indemnity from the City for breach of warranty and negligence, should Smith be found liable.

Though libelant testified that he fell from a stack of pontoons to the deck of the vessel, a distance of 3 to 4 feet, landing on his buttocks while he was pulling on one of two tag lines attached to the end of the grain spout in an effort to spot the spout over Hatch No. 2 and keep it clear of the ship's rigging, the court found the evidence to the contrary. The telescoping portion of the grain spout extended as the telescoping cable broke and libelant claimed that the resulting sudden slack in the tag line caused him to fall. After the case was concluded libelant filed new proposed findings of fact, etc., which proposed a finding simply that libelant was caused to lose his balance and fall backward without reference to falling from pontoons to the deck.

The grain spout was constructed of heavy steel pipe about 30 inches in diameter and the telescoping portion of about 35 feet in length weighed 1,800 pounds. A steel cable was used to extend or restrict the telescoping spout. The breaking strength of the cable was tested after the accident and found to be 6,950 pounds which the court found was of sufficient strength safely to perform its purpose and function in normal use. The court said that the cable would not have broken but for the inordinate strain placed upon it by the pull of the ship after libelant had caused the spout to be secured to the ship. The trial judge found that the cable had been recently replaced and inspected and was not defective. The court also found that libelant and Southern Stevedoring had long observed and were fully aware of the safe practice at this wharf that when spouts were being moved into position over a ship two wharf employees of the City would be present to handle the tag lines and assist in positioning the spout over the vessel; that on this occasion the City had not been notified by either the stevedore or libelant that the ship was being berthed and that spouts were being spotted. Libelant physically took over the spouts and attached tag lines and began spotting the spout without guidance or assistance. While doing so the court found that Chaney caused the second of the two tag lines to become secured to the ship's winch or other part of the ship and as the ship moved it pulled the cable apart. The court's conclusion was that the vessel was not unseaworthy; that there was no negligence on the part of any respondent; and that the sole proximate cause of the injury, if any, to libelant was his own heedlessness in not observing the safe practice of having spout tenders assist him and in attempting to spot the spout with only one tag line and permitting the second tag line to become secured to the ship.

Appellant contends that the findings of the district court are clearly erroneous and should be set aside. Rule 52(a), Federal Rules of Civil Procedure, provides in part that "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."

The situation here is not unlike that in our decision in Smith v. United States, 5 Cir., 1961, 287 F.2d 299, where Judge Brown wrote: "The attack on the Court's findings of fact is the not unnatural one that the Trial Judge ought not to have found as he did. But this misconceives our function. We do not retry the case. Williams v. National Surety Corp., 5 Cir., 1958, 257 F.2d 771, 773. We may determine only whether the findings pass muster under the clearly erroneous concept of F.R.Civ.P. 52(a), 28 U.S.C.A. The burden of upsetting these findings is indeed formidable here since the witnesses were all heard and seen by the Judge in open court and the crucial issues of motive and purpose involved credibility choices of the most elemental nature." A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.¹ Where the evidence would support a conclusion either way, a choice by the trial judge between two permissible views of the weight of evidence is not clearly erroneous, and the fact that the judge totally rejected an opposed view impeaches neither his impartiality nor the propriety of his conclusions.² Such total rejection cannot of itself impugn the integrity or confidence of the trier of fact.³ It is well settled that in order for a reviewing court to set...