Dunlap v. G. & C. Towing, Inc.

• Decision Date: 11 January 1980
• Docket Number: No. 78-1571,78-1571
• Citation: 613 F.2d 493
• Parties: Jewell Francis DUNLAP, Appellee, v. G. & C. TOWING, INC., a corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 493

613 F.2d 493

Jewell Francis DUNLAP, Appellee, v. G. & C. TOWING, INC., a corporation, Appellant.

No. 78-1571.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 1, 1979.

Decided Jan. 11, 1980.

Raymond G. Musgrave, Point Pleasant, W.Va. (Thomas W. Pettit, Vinson, Meek, Rife, Musgrave & Peoples, Huntington, W.Va., on brief), and Stephen W. Graffam (Grogan, Graffam, McGinley & Solomon, Pittsburgh, Pa., on brief), for appellant.

Don C. Kingery, Point Pleasant, W.Va. (C. Dallas Kayser, Kingery & Nibert, Point Pleasant, W.Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge and MURNAGHAN, Circuit Judge.

MURNAGHAN, Circuit Judge:

Appellant, G. & C. Towing, Inc., operated the motor vessel, Duncan Bruce commercially on the Kanawha River. Appellee, Jewell Francis Dunlap, who had served as an engineer responsible for the engine room on the Duncan Bruce, brought an action under the Jones Act, 46 U.S.C. § 688, and under the general maritime law, to recover damages as a result of incapacity occasioned by a left inguinal hernia which he suffered while serving as a member of the Duncan Bruce crew.

Dunlap initially suffered a hernia as a consequence of activity on board the Duncan Bruce in September, 1973. It was surgically repaired, and he returned to work. On March 20, 1975, while Dunlap was serving on the Duncan Bruce, the hernia recurred. There were no witnesses of the events which occasioned the recurrence other than Dunlap.

He testified that the engines were located on the lower deck, and extended upward through an upper deck. On the upper deck were points of access to the engines through which oil to lubricate the engines had to be poured periodically. Dunlap went from his usual location on the lower deck to a point on the upper deck where there was stored a 55 gallon oil drum, moved the drum so as to afford himself access to its contents, and drew off five gallons into a container.

Dunlap then proceeded to a point on the upper deck where he could pour the oil into one of the engines. About to perform the pouring operation, Dunlap slipped, and fell to his left knee, at which time, he testified, he felt pain in the area in which he had previously experienced his hernia. He thereupon observed a swelling which indicated that the hernia had recurred.

There was testimony that the engines of the Duncan Bruce were worn with age. The main engine leaked oil onto the lower deck, at the base of the engine, primarily through an inspection plate at a point which had a piece 12 inches long by 21/2 inches wide brazed in where previously a blown piston had broken through. Furthermore, because engine linings were worn, according to some testimony, a blow-back phenomenon occurred through the fuel pump, resulting in discharge of a smoke, comprised partly of oil and partly of water. The smoke became a mist, which settled in the form of a film in various places, in particular on the upper deck and upper deck railings.

The testimony about blow-back misting and filming was not uncontradicted, however. Dunlap called the man who had been captain of the Duncan Bruce in 1975. He was asked: "What was the problem with the engines with respect to oil?" He answered that they leaked around the pans, i. e. at the lower deck level. Dunlap's counsel then put a leading question, to which an objection was sustained: "Was the engine room usually covered with a film of oil on the upper deck?" Dunlap's counsel did not pursue further with the witness the subject of misting or filming, concentrating on oil leakage, and developing that leaking oil in the manner of the Duncan Bruce was a chronic problem with older vessels. Another Duncan Bruce crew-member called by the plaintiff attributed the oily condition of the engine room solely to the leaking of oil.

The two factors which were claimed to contribute to a generalized oily or slippery condition in and about the engine room were not, on March 20, 1975, of recent origin. That Dunlap and others were fully aware of their existence was not in dispute. Among Dunlap's assigned responsibilities, during watches he served, was the cleaning up of both lower deck and upper deck areas in and about the engine room, particularly the removal of oil on the various surfaces. The testimony was conflicting as to whether such cleaning up, particularly in the upper deck area with which the case is primarily concerned, would be so time-consuming as to interfere with Dunlap's primary duties as an engineer.

Several witnesses besides the captain testified that the oily conditions customarily to be found on the Duncan Bruce were common to other vessels. Some testimony to that effect was confined to oil leaks from the engines. Other testimony, however, while not as explicit as it might be, was susceptible of interpretation by a factfinder as establishing that blow-back misting and resulting filming were also conditions frequently encountered. James Scott McDermott, who also served as an engineer on the Duncan Bruce, called by the defendant, was asked: "Now, compared with, if you can recall, your service aboard the Duncan Bruce with other vessels that you worked on during that period of time, would you say that that engine room was more oily or less oily than the other vessels?" He answered: "Approximately the same."

The father of that witness was also called by the plaintiff, whose counsel first got the father to describe the blow-back phenomenon, and the resulting filming. Plaintiff's counsel then asked: "Okay. Mr. McDermott, on the vessels that you worked for G. & C. and for other companies, did you have the same problem with the oil on those engines that you had on the Duncan Bruce ?" The witness replied: "Just about the same." When asked by Dunlap's counsel if the problem were a chronic one, he gave an affirmative response.

There was no direct evidence that any substantial, visible accumulation of oil or grease had developed at the place where Dunlap slipped. No testimony established that he or another had tracked oil leaking out of the engines on the lower deck to the upper deck. Plaintiff testified that the mist covered the handrailing, adding "You could take your hand and scoop the grease and oil off of them." Significantly, plaintiff did not testify as to any such accumulation on the deck. He claimed his injury resulted when his foot slipped on the deck.

The district judge, feeling himself bound by this Court's decision in Schell v. Chesapeake & Ohio Ry. Co., 395 F.2d 676 (4th Cir. 1968), instructed the jury that...