Colon v. Trinidad Corporation

• Decision Date: 05 December 1960
• Citation: 188 F. Supp. 97
• Parties: Rafael COLON, Plaintiff, v. TRINIDAD CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

188 F. Supp. 97

Rafael COLON, Plaintiff, v. TRINIDAD CORPORATION, Defendant.

United States District Court S. D. New York.

October 27, 1960.

Decision Amended December 5, 1960.

Benjamin Glickman, New York City, for plaintiff. Jacob Rassner, Theodore H. Friedman, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for defendant. John L. Quinlan, John B. Shields, New York City, of counsel.

Decision Amended December 5, 1960. See 188 F.Supp. 803.

SUGARMAN, District Judge.

Rafael Colon, a seaman, sues Trinidad Corporation for damages for personal injuries sustained in two accidents aboard the S. S. Tillamook owned by defendant and for maintenance and cure. A claim for damages for defendant's alleged failure to treat plaintiff was abandoned before trial.

On November 25, 1957, while plaintiff was engaged in chipping the bulkhead at the bilges, he slipped and fell, striking his neck on an adjacent pump.

Plaintiff's trial theory was that:

"Plaintiff was working in the port bilge, below the level of the engine room floor, in a narrow portion of the shaft alley. His work consisted of chipping and painting the bulkhead. The floor of the area in which he was required to work was awash with three or four inches of water, which water included particles of rust.

"In an effort to complete his work assignment, and yet keep his feet out of the wet and slippery portion of the bilge, he obtained a dry turpentine can on which he could stand while working on the bulkhead. While doing his chipping and painting work, he fell off the turpentine can, striking the back of his neck on a bilge pump which protruded in the work area."

The court did not have the benefit of plaintiff's presence at the trial. His evidence was given by reading parts of his deposition upon oral examination.

Photographs of the area received in evidence (Defendant's F-J, inclusive) coupled with the testimony of Everett E. Grover, Chief Engineer on the "Tillamook" when plaintiff was injured, an experienced mariner whose testimony I believe, show that plaintiff's theory is unacceptable.

It would have been physically impossible for plaintiff to stand on the can while chipping and sweeping up rust as claimed.

The bilges were dry. That plaintiff had a can in the confined area of the bilge where he was working is undisputed. The totality of the evidence impels the inference that for his own convenience and comfort plaintiff had, on his own, procured and used the can as a seat while pursuing his task of chipping the rust and scale. When it came time for him to go for his coffee, he stepped on the can in order to facilitate his ascent from the floor of the bilges to the floor of the shaft alley. The distance between the two levels last mentioned was about three feet. The can gave way under him, either slipping or collapsing.

This is largely consistent with plaintiff's own deposition which also shows the implausibility of his theory of trial:

"Q. Well, were you actually chipping or had you started to remove the matter that you described as rust? A. I was taking it out, gathering it up.

"Q. Exactly what were you doing with the matter? Were you sweeping it up or were you picking it up in a dustpan or similar tool? You made a motion with your hands which indicated something of that sort. A. With a pan which would pick up this matter, this waste.

"Q. Were you bending over at the time you slipped or were you standing up straight? A. When I was standing up. It is a very narrow space there. I was picking up this waste matter and when I was standing up that is when it happened; that is when I slipped.

"Q. And did you slip on water? A. No; on top of a can, a kerosene can.

* * * * * *

"Q. Will you explain that, please? A. Can I show you just exactly how it was? (Showing) I had the kerosene can lengthwise on the floor and in order not to get wet I was leaning against it in a seated position and chipping at that time.

* * * * * *

"Q. Mr. Colon, your attorney has advised me that your claim is that you were working in the bilge. Is that right? A. Yes.

"Q. Now, as you were working in the bilge, tell me how your use of that kerosene can would prevent you from getting wet. A. I put it down on the floor of the bilge and then I put my foot on it.

"Q. A short while ago you said you were leaning on it or more in a sitting position on it. Now, which is it? A. I was just using it as a base so as not to get my feet wet."

There is no evidence that defendant was under the obligation to furnish plaintiff with any mechanical means of exit from this place of work, either in the exercise of reasonable prudence under the negligence count or under the absolute duty to provide a reasonably seaworthy vessel under the unseaworthiness count.

Judgment shall be entered for defendant on the first "cause of action".

In his second "cause of action", plaintiff claims damages for injuries sustained on the same vessel when on December 16, 1957 he alleges he fell on a slippery portion of a deck passageway injuring his left thigh and straining a muscle.

In his trial memorandum of "Applicable Law", plaintiff's counsel states:

"Absolute liability is imposed on a ship owner for injuries rising due to a slippery condition aboard the vessel. Mitchell v. Trawler Racer, Inc., 362 U.S. 539 80 S.Ct. 926 4 L.Ed.2d 941 (1960)."

In this respect plaintiff is far in advance of the Supreme Court in converting the FELA, 45 U.S.C.A. § 51 et seq., and the Jones Act, 46 U.S.C.A. § 688, into a workmen's compensation statute. A "scintilla" of evidence on which to base a finding of negligence or unseaworthiness¹ is still required.

The court finds no...