Fegan v. Lykes Bros. S. S. Co., Inc
| Decision Date | 27 January 1941 |
| Docket Number | 17353 |
| Citation | 199 So. 680 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | FEGAN v. LYKES BROS. S. S. CO., INC |
Terriberry, Young, Rault & Carroll and Andrew R. Martinez all of New Orleans, for appellant.
Benjamin Y. Wolf, of New Orleans, for appellee.
No good purpose would be served by our restating the facts of this case since they have already been completely set forth by us in 195 So. 392 and by the Supreme Court in its opinion, 196 La. 541, 199 So. 635 rendered on December 2, 1940, not yet reported in State reports.
The Supreme Court found no fault with our conclusion that the record does not contain sufficient proof to warrant a judgment on plaintiff's claim for maintenance and cure and approved that part of our decree which remanded for further proof that part of the claim. But the Supreme Court disapproved our ruling admitting in evidence and considering the findings of the "C" Marine Board of Investigation and of the Assistant Director of the Bureau of Marine Inspection and Navigation of the Department of Commerce, and it remanded to this court that part of plaintiff's suit which, under the so-called Jones Act, 46 U.S.C. A. §688, involved his claim for damages. It did so because it could not determine whether we would have denied the claim for damages had we not considered those findings which it has held to have been improperly admitted.
Our conclusion that there was no negligence on the part of the ship, or of its officers or crew, except the negligence of Fegan himself, was not influenced by a consideration of those findings. In fact, before considering them, from the other evidence we had already formed the opinion that the sole cause of the recoil of the gun which injured the plaintiff was his own negligence in using too heavy a charge of powder. We are of the same opinion still. We have again investigated each charge of negligence made on behalf of plaintiff and find it unnecessary to discuss any of those charges except one. And we now discuss that one which involves the failure of the ship to furnish a powder bag which could have contained only the proper quantity of powder only because counsel for plaintiff has again strenuously argued that this failure constituted negligence without which an excessive quantity of powder could not have been used.
We do not believe that the failure to furnish such a bag constituted actionable negligence for the reason that there is no dispute about the fact that it is the duty of an officer, such as plaintiff was, to understand just how much powder should be...
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Fegan v. Lykes Bros. S. S. Co.
...the case was submitted to the jury, decided that the plaintiff had failed to establish wherein the defendant was guilty of negligence. 199 So. 680. After plaintiff's request for a rehearing was denied by the Court of Appeal, he again applied to this court for a writ of certiorari, which was......
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Thompson v. Zapata Haynie Corp.
...entitled. See Fegan v. Lykes Bros. S.S. Co., 195 So. 392 (Orl.Cir.1940), cause remanded, 199 So. 635, 196 La. 541 (La.1940), conformed to 199 So. 680, modified 3 So.2d 632, 198 La. 312 Based upon the foregoing, the judgment of the trial court is reversed and vacated insofar as Thompson is g......
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