Fegan v. Lykes Bros. S. S. Co., Inc.

• Decision Date: 22 April 1940
• Docket Number: 17353.
• Citation: 195 So. 392
• Court: Court of Appeal of Louisiana — District of US
• Parties: FEGAN v. LYKES BROS. S. S. CO., INC.

195 So. 392

FEGAN v. LYKES BROS. S. S. CO., INC.

No. 17353.

Court of Appeal of Louisiana, Orleans.

April 22, 1940

Rehearing Denied June 4, 1940.

Writ of Certiorari Granted July 18, 1940.

Appeal from Civil District Court, Parish of Orleans; Nat W. Bond Judge.

Action by Marcus Joseph Fegan against the Lykes Brothers Steamship Company, Inc., to recover damages for personal injuries and amount due for maintenance and cure under plaintiff's maritime employment contract. Judgment for plaintiff, and defendant appeals.

Reversed in part, and reversed and remanded in part.

Terriberry, Young, Rault & Carroll and Andrew R. Martinez all of New Orleans, for appellant.

Benjamin Y. Wolf, of New Orleans, for appellee.

McCALEB, Judge.

The plaintiff, Marcus Joseph Fegan, was employed as First Mate on the Steamship West Tacook. He had made a voyage to England and was on his way back to the United States when he was injured on board the ship. He has filed suit on two causes of action against the defendant ship-owners, Lykes, Bros. Steamship Company, Inc., for the injuries he received--the first being brought under the Jones Act, 46 U.S.C.A. § 688, which extends to seamen the rights conferred upon railway employees engaged in interstate commerce, 45 U.S.C.A. § 51, and the second, under his maritime contract of employment, for recovery of maintenance and cure made necessary as a consequence of the accident.

The first cause of action, which is founded upon the alleged negligence of the defendant in failing to provide a safe place to work and safe appliances to work with, arises out of the following state of facts:

On May 13, 1938, while the S.S. West Tacook was about 80 miles south of South Pass on its return voyage from England to Beaumont, Texas, the plaintiff was directed by the master of the vessel to fire a Lyle gun. Acting in accordance with these instructions, he prepared the gun for firing-that is, he lashed and supervised the lashing of the gun, prepared the charge of powder, loaded the gun with the powder, inserted the projectile in the gun, and fired it. When the gun was fired, it broke loose from its lashings, struck the overlap of the deckplate, inflicted a dent therein and broke off one of the angle irons which was connected to its carriage when some of the rivets sheered off from this blow. The course of the gun was thereby deflected which caused it to strike the plaintiff on his right leg and, as a result, he sustained painful and permanent bodily injuries.

Plaintiff alleges that the accident was caused through the negligence of the defendant because the Lyle gun was approximately 20 years old and in a dangerous condition; that there was a crack between the trunnion and the muzzle of the gun which was running rust and that it did not have the appliances prescribed by the United States Department of Commerce in that it was not equipped with rings, eyebolts, or other efficient devices fitted to its carriage for securing it properly in a position for firing. He further avers that the injuries he received have resulted in his permanent incapacity to pursue his vocation as seaman and that he is entitled to recover damages in the sum of $52,625.24.

In addition to the claim for damages, plaintiff seeks to recover under his maritime contract of employment the sum of $6,813.33 for maintenance and cure.

The answer of the defendant admits that plaintiff was employed as first mate on its ship and that he was injured as a result of firing the Lyle gun under instructions of the ship's captain. It denies, however, that the accident occurred through its negligence and it sets forth specifically that the Lyle gun was in good order and condition at the time the plaintiff fired it. It further avers that the accident was caused solely through plaintiff's negligence, in that he failed to cause the gun to be properly lashed before he fired it and also carelessly and negligently loaded it with an excessive amount of powder and that, as a result thereof, the gun kicked back, broke from its lashings and struck the plaintiff, causing him to be injured. It further alleged that, at the time the plaintiff fired the gun, he was standing in an improper and unsafe place and that the injuries sustained by him are due to his own carelessness.

In the alternative, the defendant alleged that, if it should be found that it was at fault in any respect, then plaintiff was guilty of contributory negligence barring his recovery and again, alternatively, that plaintiff's contributory negligence should be considered in fixing the amount of the damage he sustained. In addition to the foregoing, the defendant further pleaded, in the alternative, that the accident to the plaintiff was the result of risks normally incident to his employment aboard the vessel for which it is not liable.

After a trial on the foregoing issues before a jury, there was a verdict (by a nine to three vote) in favor of plaintiff for the sum of $10,000 damages for the injuries sustained by him and he was also awarded the sum of $4,800 for maintenance and cure under his maritime contract. A judgment was entered on the verdict and the defendant has prosecuted this appeal from the adverse decision. The plaintiff has answered the appeal and prays that the award given him in the court below be increased to the amount sued for.

The law of this case is not seriously disputed. The main claim, which is based upon the negligence of the defendant, is brought under the provisions of the Jones Act, 46 U.S.C.A. § 688, the pertinent part of which provides as follows: " Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; * * *."

By the foregoing provisions, certain parts of the Federal Employers' Liability Act, 45 U.S.C.A. § 51, regulating actions for personal injuries by employees against railroads have become embodied in the maritime law. Under that statute and the applicable decisions of the state and federal courts, the action of the seaman, must be predicated upon the negligence of the defendant and it is incumbent upon him to prove fault by a preponderance of evidence. See San Antonio etc. R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110; Southern Railway Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030; New Orleans & North Eastern RR Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; and Asprodites v. Standard Fruit & Steamship Co., 5 Cir., 108 F. 2d, 728.It is further to be observed that the defenses of contributory negligence and assumption of risk are not available as bars to recovery under the statute but they are to be given consideration in determining the amount of damages to be allowed. See Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265.

Accordingly, the only question to be resolved with respect to the defendant's liability is whether the Lyle gun itself was unsafe or whether the defendant failed to supply all of the necessary and appropriate appliances in order that the plaintiff might fire the gun with reasonable safety. The undisputed facts of the case reveal the following:

The Department of Commerce of the United States Government has issued regulations which require that vessels, such as the West Tacook, be equipped with a Lyle gun and projectiles. The Lyle gun is part of the safety equipment of the vessel and is of cannon muzzle loading type. It is used for casting a line to assist in rescue work, or as an aid to vessels when in distress. The regulations require the gun to be fired not less than every three months and records covering the firing must be entered in the log book of the vessel. These firings are known as gun drills. The firing of the gun is required to be made by the chief officer or any other officer of the vessel designated by the master. The amount of powder to be used in one of these drills should be half the amount of what is known as a service charge or three or four ounces. The maximum amount of powder to be used at any time--that is, in time of distress when the Lyle gun is used for other purposes--should never exceed eight ounces.

On May 13, 1938, the plaintiff was instructed by the master of the vessel to fire the Lyle gun. In accordance therewith, the plaintiff ordered two seamen, Kinker and McDonald, to remove the gun from the box in which it was housed on the bridge of the vessel to the starboard side of the bridge deck. When it had been thus removed, the plaintiff lashed the gun to a four-inch water pipe with a new piece of three and one-half inch manila rope. He then sent one of the seamen for powder and powder bags to be used in the firing of the gun. A one-pound can of powder was delivered to him which, he says was about one-fourth full. There were no powder bags aboard the vessel and the third mate on the bridge furnished material for the making of a powder bag. Kinker, one of the seamen assisting the plaintiff, sewed up the bag and when this was complete, the plaintiff took the contents of the can and poured it into the improvised bag. After this was done, he inserted the powder bag into the gun barrel and also placed the projectile therein. The plaintiff then had three or four primers delivered to him and he attached a lanyard to these primers for the purpose of firing the gun. At first, he was unsuccessful in firing the gun as he states that the primers would bend and break out of the primer hole when he pulled the lanyard. On the third or fourth attempt, however, the powder ignited and the gun...