Grant v. United States Shipping Board Emergency Fleet Corp.

• Decision Date: 14 November 1927
• Docket Number: No. 41.,41.
• Citation: 22 F.2d 488
• Parties: GRANT v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

22 F.2d 488 (1927)

GRANT v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

No. 41.

Circuit Court of Appeals, Second Circuit.

November 14, 1927.

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Silas B. Axtell, of New York City (Lucien V. Axtell and Charles A. Ellis, both of New York City, of counsel), for plaintiff in error.

William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Edgar G. Wandless and Frederick H. Cunningham, both of New York City, of counsel), for defendant in error.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

It seems difficult to account for the accident to the plaintiff, if the stanchions were securely held in their sockets by cotter pins. The weather was rough, but we find nothing in the record to show that it was very extraordinary. The wave which struck the plaintiff and swept him against the chain rail came from the other side of the ship, and would almost inevitably be somewhat broken in force before it reached him. It seems difficult to suppose that such a wave, when striking the chain rails and stanchions, even with the added weight of the plaintiff accompanying it, would exert sufficient force to lift the stanchions out of their sockets, if the cotter pins had been in place. It is to be noted that the only testimony about the stanchions themselves shows that they were not bent and were immediately replaced in their sockets. Therefore they must have been lifted, and not pried out, by the force of the wave, for in the latter case they would almost surely have been bent.

The testimony of the plaintiff that he found one or two stanchions out of their sockets, half suspended on the chains, after the ship left Mobile, and replaced them, and that on three trips which he had taken upon the vessel he had observed that some of the stanchions did not have pins, tended to show a habit of neglect to fasten the stanchions to the ship. To this was added the testimony of plaintiff's witness Crosby that immediately after the accident there was no cotter pin in one of the stanchions which he found out of its socket, and that he was quite sure the stanchions in general lacked pins; and the testimony of Steensnes that he removed the stanchions when No. 3 hatch was loaded at Mobile and reset them without cotter pins, and that he helped put the stanchions in place after the accident and found no pins. It is true, if the cotter pins had been in place, but were broken by the force of the wave which lifted out the stanchions, they would doubtless have been broken or bent, as some of defendant's witnesses said was the case; but plaintiff's witnesses found no such condition. It is clear that the testimony offered on behalf of plaintiff, showing a habit of neglect to fasten the stanchions properly, coupled with the testimony that there were no pins found after the accident, raised a question for the jury as to whether the chain rail was securely held.

Moreover, the testimony that the force exerted...