Fredericks v. American Export Lines

• Decision Date: 07 November 1955
• Docket Number: Docket 23077.,No. 10,10
• Citation: 227 F.2d 450
• Parties: Fred FREDERICKS v. AMERICAN EXPORT LINES, Inc. S. J. FARRINGTON IRON WORKS, Inc., v. JOHN W. McGRATH CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

227 F.2d 450 (1955)

Fred FREDERICKS v. AMERICAN EXPORT LINES, Inc.

S. J. FARRINGTON IRON WORKS, Inc., v. JOHN W. McGRATH CORPORATION.

No. 10, Docket 23077.

United States Court of Appeals Second Circuit.

Argued October 4, 1955.

Decided November 7, 1955.

Sylvia Miller, New York City (Chester A. Hahn, New York City, of Counsel), for plaintiff-appellee-appellant.

John J. Kirwan, New York City (Leo F. Hanan and Martin J. McHugh, New York City, of Counsel), for defendant-appellee.

Hurley, Kearney, Lane & Mattison, Brooklyn, New York (Denis M. Hurley, George P. Lane and William C. Mattison, Brooklyn, N. Y., of Counsel), for defendant-appellant S. J. Farrington Iron Works, Inc.

Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.

MEDINA, Circuit Judge.

Plaintiff was employed as a longshoreman on Pier 84, New York City, by the John W. McGrath Corporation (McGrath), which was under contract to perform general stevedoring services for the American Export Lines, Inc. (American), the lessee in possession of the pier. On April 13, 1951, plaintiff was standing on a skid or platform, assisting in the transfer of cargo from a ship to the upper story of the pier, when one of the iron supports on the skid broke, the skid gave way and plaintiff was precipitated to the stringpiece of the pier below. To recover damages for the serious injuries resulting from his fall, plaintiff brought this action, invoking the diversity jurisdiction of the District Court, against American and the S. J. Farrington Iron Works, Inc. (Farrington). Plaintiff appeals from the trial court's dismissal, at the end of his case, of the complaint against American; defendant Farrington appeals from the judgment entered on the jury's verdict for the plaintiff against Farrington. 117 F.Supp. 355.

Farrington's Appeal

The skid was the property of McGrath and was one of a type designed by a McGrath employee along lines suggested by skids used by another stevedore. It consisted of wooden planks, reinforced and bolted onto a bed of three iron plates, one at either end, and one in the center, each of which was six inches wide and three-fourths of an inch thick. Laterally, on one side all three irons made two right angle turns. The first turn was around the plank, marking one end of the bed; and the second turn was away from, but level with the planks, forming metal extensions, which fitted into and rested unfastened on the upper floor of the pier when the skid was in use. On the other side, the center plate terminated with the planking of the skid. The two end plates bent up at right angles to form pad eyes. When a loft skid is in use, two wire cables, one hooked into each pad eye, and suspended from the uprights of the pier, on either side of the doorway or opening, provide support for the skid. Loss of part of this support, when a pad eye broke off from the rest of the skid iron, was the immediate cause of the accident.

The applicable law is that of New York, and in instructing the jury the Court correctly, it is conceded, relied on that line of cases beginning with MacPherson v. Buick, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. The substance of the charge was that the jury was to return a verdict for the plaintiff if they found, first, that a defectively fabricated skid iron was to Farrington's knowledge reasonably certain to place life and limb in peril, second, that the broken skid iron had in fact been negligently fabricated by Farrington, and, third, that Farrington's negligence was a proximate cause of plaintiff's injury.

The broken skid iron was one of some seventy-five irons fabricated by Farrington on orders placed by McGrath between 1945 and 1948. The break, in the expert opinion of one witness, might have started at the time of fabrication. In any event, it occurred because the concave surface of the right angle between bed and pad eye was formed over too small a radius creating a "stress raiser" or "localizer," an inherent weakness. This, the expert testified, had the effect of increasing indeterminably the stress put on the metal by any given load so that the metal would start to fail under a small load. From this evidence the jury could have found negligence and proximate cause. There was also evidence from which the jury could have deduced that Farrington had knowledge of the purpose to which the iron was to be put and hence of the danger to which human life would be exposed if the iron proved defective.

Farrington bases its first argument on the language of Judge Cardozo in MacPherson v. Buick. "The principle that the danger must be imminent does not change," which appears at page 291 of 217 N.Y. at page 1053 of 111 N.E., is interpreted by the defendant as a holding intended to limit the liability of the manufacturer in terms of the period of time intervening between cause and effect. MacPherson v. Buick, however, does not so hold, and immediacy in point of time is not an indispensable element of the New York rule. A bomb is nonetheless deadly if it contains a time mechanism. On the other hand, evidence of the passage of time, together with that of other attendant circumstances, is admissible, in order that a jury may not be led astray. The mere passage of time confers no immunity upon a negligent wrongdoer; but it has relevance to the likelihood, depending upon the circumstances of a particular case, that deterioration due to use, perhaps accelerated by misuse, will be mistaken by a jury for a defect due to negligent manufacture or fabrication. On the evidence before us in this case, we cannot say the jury went beyond permissible and rational inference in attributing the accident to Farrington's negligent fabrication of the skid iron, which cracked and came apart, despite at least two and one-half years of apparently safe use and normally rough handling. Davis v. Long Island R. R., 301 N.Y. 450, 453, 95 N.E.2d 700; Newhall v. McCann, 267 N.Y. 394, 398, 196 N.E. 302; Hayes v. Thompson, Sup. Ct.1874, 2 Hun 518.

A brief discussion of another ground for reversal urged by Farrington will serve to bring into focus what seems to have been one of Farrington's principal contentions at the trial, the particulars of which will be referred to shortly.

The jury retired for their deliberations at 12:42 P.M. and at 3:45 P.M. requested further instructions, which were given. At 5:40 P.M. the forelady sent a message to the effect that the jury were unable to agree, but the trial judge requested them to make a further attempt to arrive at a verdict. Thereupon the jury requested that certain exhibits be brought to the juryroom and about fifteen minutes later, at 6:15 P.M., the trial judge, of his own motion and without further request from the jury or anyone else, recalled the jury and proceeded further to clarify "some portions" of his charge. He said:

"The Court: Ladies and gentlemen, I have been troubled that some portions of my charge might not have been as clear as they could have been, so I have attempted to rephrase, in the hope that clarification will be served.

"The issues for your consideration are actually few and relatively simple, and you may not consider any other issues than the ones I submit for your consideration. You can\'t speculate. The Court frames the issues, and those are the issues you will concern yourselves with."

This introductory statement was followed by a paraphrase of what had already been said in the main charge on the subject of what the law required to be shown by...