Ferguson v. Erie Railroad Company

• Decision Date: 30 April 1964
• Citation: 235 F. Supp. 72
• Parties: William F. FERGUSON, Plaintiff, v. ERIE RAILROAD COMPANY and William Spencer & Son Corporation, Defendants. ERIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. WILLIAM SPENCER & SON CORPORATION, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

235 F. Supp. 72

William F. FERGUSON, Plaintiff, v. ERIE RAILROAD COMPANY and William Spencer & Son Corporation, Defendants.

ERIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. WILLIAM SPENCER & SON CORPORATION, Third-Party Defendant.

United States District Court S. D. New York.

April 30, 1964.

COPYRIGHT MATERIAL OMITTED

DiCostanzo, Klonsky & Sergi, Brooklyn, N. Y., for plaintiff, Robert Klonsky, Brooklyn, N. Y., of counsel.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for defendant Erie R. Co., J. Roger Carroll, New York City, of counsel.

Perrell, Nielsen & Stephens, New York City, for defendant William Spencer & Son, Corp., Tidal B. Henry, Jr., and John W. Fuhrman, New York City, of counsel.

FEINBERG, District Judge.

This is an action by plaintiff William F. Ferguson against Erie Railroad Company ("Erie") and William Spencer & Son Corporation ("Spencer") for personal injuries sustained when caustic soda came into contact with plaintiff's right eye while he was employed by Erie as a barge captain. The suit against Erie is based upon both the Jones Act, 46 U.S.C. § 688, and the alleged unseaworthiness of the barge. The suit against Spencer is based solely upon negligence and, although on the admiralty side of the Court, was tried simultaneously with the action against Erie. Erie asserts a third party claim against Spencer for indemnity, alleging that Spencer is obligated to indemnify it for any amounts it may have to pay to plaintiff.¹ For reasons indicated below, I hold that plaintiff is entitled to a judgment of $35,000 against Erie, and Erie is entitled to judgment against Spencer. Based upon all the evidence and the Court's judgment of the credibility of the witnesses, the facts are as found below.

I

Plaintiff Ferguson was injured on March 19, 1958, while employed by Erie as barge captain of Erie Barge No. 363. The barge which was not self-propelled, was about ninety feet long, thirty feet wide, closed, made entirely of metal, and contained a cabin with a bunk. Ferguson had been employed aboard the barge for two or three years prior to the accident. Although plaintiff was "barge captain," there were no other seamen assigned to the barge. Plaintiff maintained log slips, checked freight, hung fenders, handled the lines and lights, cleaned the barge, and was ordinarily aboard when the vessel was towed from one point to another in the day time and occasionally aboard when it was towed at night. Ordinarily, Ferguson went home every night at 5:00 P.M. and reported to the barge every morning at 8:00 A.M.

On the day before the accident, plaintiff boarded the barge at Weehauken, New Jersey, where it took on about 570 drums of caustic soda in flake form. The drums, which weighed several hundred pounds apiece and were made out of a soft metal, were taken off railroad cars approximately forty or fifty feet away by Erie employees who then loaded the drums on the barge by means of two hilos. These hi-los were equipped with a pushing mechanism, an accordian-like device which pushed off the four drums loaded on the platform at the front of the hi-lo. The drums had been loaded in a single tier in the railroad cars, but were placed on the barge in double tiers, with no dunnage in between. Many of the drums that were loaded on the barge were badly dented. A few of the drums had loose tops when taken off the railroad cars, and they were set aside to be repaired, but it is not clear if the repairs were ultimately made or if these drums were loaded on the barge. In any event, when the loading was completed on March 18, there was no caustic soda on the deck of the barge. The barge, with Ferguson on board, was then towed to Pier 36 in Manhattan.

Employees of Spencer unloaded the barge on March 19. Spencer did this work pursuant to a written contract with Erie dated May 31, 1927. The unloading was done by knocking a drum on the top tier over on its side and then dropping it on to a pallet which was removed by a hi-lo. During the course of unloading the drums, a substantial quantity of caustic soda found its way to the deck of the barge, some of it because the tops of some drums came off. Spencer's employees first noticed the spillage of soda on the deck between the drums yet to be unloaded approximately one-half hour after the work began, but continued to unload. Those drums, some with holes in the side, from which soda was apparently leaking were moved by Spencer employees to a separate place on the deck, and the other drums were unloaded. Sixteen drums were so set aside, and a Spencer employee repaired them in the early afternoon of March 19, and these drums were then unloaded.

At about 2:15 P.M. on March 19, the unloading operation had been substantially completed. By this time, caustic soda covered a very substantial portion of the deck of the inside of the barge. Plaintiff, who normally cleaned the barge, started to remove the soda from the deck, using a shovel with ragged edges and an ordinary kitchen-type broom, both supplied by Erie. In the course of doing this on a deck whose surface contained small diamond-shape protuberances, the shovel caught and flipped a piece of caustic soda in plaintiff's right eye. Plaintiff felt pain immediately and ran off the barge to a medical office on Pier 36. His eye was washed out with water, and he contacted his employer. Thereafter, he went to a hospital in Jersey City, where he was treated by a doctor retained by Erie. He was admitted on March 19, and discharged on March 23, but was not able to return to work until April 28, 1958.

I find that, under the facts in this case, plaintiff is within the protection of the doctrine of seaworthiness and a seaman within the meaning of the Jones Act, 46 U.S.C. § 688, and is not covered by Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, as urged by Erie. Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 430 (1944); Usiak v. New York Tank Barge Co., 299 F.2d 808 (2 Cir. 1962); Weiss v. Central R. R., 235 F. 2d 309 (2 Cir. 1956); see Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737 (1958); Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6 Cir.), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L. Ed. 34 (1953); but compare Wm. Spencer & Son Corp. v. Lowe, 152 F.2d 847 (2 Cir. 1945), cert. denied, 328 U.S. 837, 66 S.Ct. 1012, 90 L.Ed. 1613 (1946); American Lighterage Corp. v. Willard, 104 F.Supp. 241 (E.D.N.Y. 1952). Leading to the conclusion that plaintiff's job related to navigation are, among other things, his duties with respect to handling lines, lights, cleaning and keeping report sheets, and his length of servce aboard Barge No. 363.

Plaintiff's claim against Erie is based upon theories of unseaworthiness and negligence. A seaman is entitled to recovery from a shipowner for injuries caused by the unseaworthiness of a vessel, its appliances and equipment. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903); Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223, 227 (2 Cir.), cert. denied, 375 U.S. 829, 84 S. Ct. 73, 11 L.Ed.2d 61 (1963). A ship is unseaworthy, if it is not reasonably fit for its intended use. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). A deck covered with caustic soda constitutes unseaworthiness. Cf. Torres v. Kastor, 227 F. 2d 664 (2 Cir. 1955). A shovel with frayed edges, which was used to clean up the deck of the barge which contained small diamond-shape protuberances, is unseaworthy equipment, because it is not reasonably fit for its intended use. The ship was also unseaworthy because failure to provide protective glasses to the captain to enable him to clean up this dangerous cargo rendered the barge less than reasonably fit for its intended use. Cf. Ezekiel v. Volusia S. S. Co., 297 F. 2d 215, 91 A.L.R.2d 1013 (2 Cir. 1961), cert. denied, Pinto v. States Marine Corp., 369 U.S. 843, 82 S.Ct. 874, 7 L. Ed.2d 847 (1962).

A shipowner is negligent if it knew of, or should have known of, a dangerous condition which is reasonably likely to cause injury and does not exercise the care which a reasonably prudent man would have exercised under the circumstances. Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); cf. Ktistakis v. United Cross Nav. Corp., 316 F.2d 869 (2 Cir. 1963). I find Erie negligent because it knew or should have known that caustic soda in badly dented drums might leak and should have known that failure to provide protective glasses and a shovel in good order was likely to cause injury to a barge captain whose job it was to clean up the barge, when dangerous material, such as caustic soda, is involved.

I find that the accident to plaintiff and his resultant injuries were proximately caused by the unseaworthiness of the vessel and Erie's negligence. I further find that there was no contributory negligence on the part of plaintiff. Plaintiff's duties included cleaning up the deck. It is the duty of the ship to provide plaintiff with proper equipment for doing his job, Street v. Isthmian Lines, Inc., 313 F.2d 35 (2 Cir.), cert. denied, 375 U.S. 819, 84 S.Ct. 55, 11 L.Ed.2d 53 (1963), and, under the circumstances, I do not find it negligent for plaintiff to have used the equipment with which he was provided.

Plaintiff was thirty-four years old at the time of the accident; he is now forty. As a result of the contact of the caustic soda with his right eye, plaintiff suffered "industrial blindness," which means vision of 20/200 or worse. The vision in plaintiff's right eye is now 20/400 and is not correctable with eyeglasses. Among other things, plaintiff is left with scars on the cornea of his right eye obscuring the pupil, chronic conjunctival congestion, excessive lachrymation, a lowering of the right eye lid, which is a slight disfigurement, sensitivity to light with resultant frequent need to wear dark glasses,...