Field v. Waterman SS Corporation, 9045.
| Decision Date | 29 June 1939 |
| Docket Number | No. 9045.,9045. |
| Parties | FIELD v. WATERMAN S. S. CORPORATION. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard B. Montgomery, Jr., of New Orleans, La., for appellant.
Gessner T. McCorvey, of Mobile, Ala., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
John Field, a seaman, brought this suit under the Jones Act, § 33, 46 U.S.C.A. § 688, to recover for an injury received from a fall while working as an able-bodied seaman on a vessel owned by the Waterman Steamship Corporation.
The petition alleged that Field was ordered to paint the stern of the ship; "that while mounting the jacob ladder the step slipped and caused him to fall"; and that in falling he caught on a brace line and severely wrenched his shoulder. The petition further alleged "that said injury was due solely to the negligence and carelessness of the defendant, its agents, officers, servants and employees, or the persons for whom defendant is liable, in that they did not properly rig the stages and brace lines on which the plaintiff was working at the time of the injury."
The evidence informs that plaintiff shipped as an able-bodied seaman on the Arizpa, a vessel owned and operated by the Waterman Steamship Corporation. On September 8, 1936, while the vessel was in Cuba, he and a fellow employee, one Eiland, were directed to paint the stern of the ship. This was a part of their duties as able-bodied seamen. At the same time other members of the crew were engaged in painting other portions of the ship. The plaintiff and Eiland selected a stage from several stages on the deck, and selected ropes with which to swing the stage under the stern. They also selected a jacob's ladder on which to climb down to the stage from the deck, and rigged the stage from which they were to paint. This was also a part of their duties as able-bodied seamen. Field testified that they were on the stage painting and that the rigging did not meet his approval, and that he went to the boatswain and requested additional stages, but that the boatswain did not reply to his request. It is not shown that the boatswain heard this request. He attempted to leave the stage again to go upon the deck to complain to the boatswain, but as he reached for the jacob's ladder his hand slipped, causing him to fall, and to avoid falling into the water he caught on a guard line and injured his shoulder.
Field testified further that for safety three stages should have been used, and that it was the duty of an able-bodied seaman to select the kind and number of stages to be used, and to rig them as he saw fit. Witness Eiland testified that the general custom was to use two stages lashed together, but that when two or three stages were used four or five men painted from them at the same time. No defect was shown in the guard line, the rigging, the stage, or the jacob's ladder. It is without dispute that the ship was seaworthy and the appliances without defect, and that other stages were on the deck and could have been used by Field if he so desired.
At the conclusion of this evidence by the plaintiff the trial court dismissed the petition pursuant to rule 41(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c. It is from this ruling that plaintiff has appealed to this court.
The evidence fails to substantiate the allegations of the petition. Without amending his petition as is provided by rule 15 (b), Rules of Civil Procedure for District Courts, the plaintiff abandoned his charge and now contends that defendant failed to provide him sufficient stages on...
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