La Guerra v. Brasileiro
| Citation | 124 F.2d 553 |
| Decision Date | 08 January 1942 |
| Docket Number | No. 130.,130. |
| Parties | LA GUERRA v. BRASILEIRO. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
David S. Romanov, of New York City (Samuel B. Goodman, of New York City, on the brief), for plaintiff-appellant.
John M. Aherne, of New York City (Bigham, Englar, Jones & Houston and John L. Quinlan, all of New York City, on the brief), for defendant-appellee.
Before AUGUSTUS N. HAND, C. E. CLARK, and FRANK, Circuit Judges.
The error herein assigned is the district court's action in holding the plaintiff's evidence insufficient to merit the jury's consideration in a personal injury action brought under the diversity-of-citizenship jurisdiction of the court. The plaintiff suffered his injuries while unloading a vessel owned by the defendant corporation; and since the plaintiff had seventeen years of experience in such activities, a sophisticated trier of facts would naturally look askance at an injury caused him by falling bags. Under such circumstances it is easy to accept as legal grounds for dismissal what after all are the somewhat unconscious inferences made from the facts. But the function of making such inferences must be reserved for the jury, and we believe that here there were not sufficient legal grounds to justify the taking of the case from them.
As the evidence disclosed, the plaintiff did not work for the defendant, but was a stevedore employed by a stevedoring company which, in turn, was engaged in removing cargo from the defendant's ship in the Port of New York. The cargo, bags of coffee of about 135 pounds each, was contained in a hold that also contained a cargo of bags of cocoa (each weighing abount 225 pounds) destined for Philadelphia. The two cargoes were separated by a bulkhead consisting of bags of cocoa piled up in interlocked layers, alternating between layers, with each bag fore and aft, and layers "aburton," or each bag crosswise. This was apparently an accepted way of constructing a bulkhead and one which obviously would be somewhat stable. The trouble here arose because the top six or seven layers of the bulkhead were all aburton — an improper method according to the testimony.
As the New York cargo was removed, some of the aburton layers of Philadelphia cargo were observed to be leaning forward, toward the space where the men, including plaintiff, were working. This condition was brought to the attention of the hatch boss, also an employee of the stevedoring company, who instructed the men to remove the leaning bags. After this was done, plaintiff was still not satisfied that enough Philadelphia bags had been removed. He said so to the hatch boss; but the latter said it was "O.K.," and that the men "could see that it was O.K." Plaintiff wanted "to be sure"; and the hatch boss evidently appreciated the danger, for he told a sailor of defendant (assigned to aid as needed) that the situation would become more dangerous as more cargo was discharged, and asked the sailor to go out and get some rope to lash the Philadelphia cargo. About fifteen or twenty minutes later and before the sailor had returned, some of the Philadelphia bags toppled over and struck the plaintiff, causing the injuries for which the action is brought.
The district court, on this evidence presented by the plaintiff, dismissed the action. Thereafter on a motion for a new trial it wrote an opinion in which it spelled out the reasons for its conclusion. Thus it thought the ship was turned over to the stevedores in a safe condition, and that there was no liability on the ship's part. Such a conclusion appears to entail a belief that the consequences of improperly stowed cargo, if not a result of the ship's construction, are assumed by the unloaders. In other words, full responsibility for negligent stowage falls on the stevedoring company, and it insures, so to speak, its employees against the ship's negligence. We cannot agree with this conclusion.
It seems clear to us that a jury could find the bulkhead improperly constructed. Since the ship's agents stowed the cargo, and since it is reasonably foreseeable that improper stowage might result in bags falling over and striking some one, the ship would be liable for this accident if the jury found it resulted from improper stowage. Cf. The Adour, D.C. Md., 21 F.2d 858, 861. There a wooden bulkhead was erected to stabilize the cargo. The court observed that "the ship was responsible for the proper construction of the bulkhead in the first instance, and * * * a similar duty existed to maintain the bulkhead in a...
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Daniels v. Pacific-Atlantic SS Co.
...of unseaworthiness has been extended to include improper stowage of cargo, causing personal injuries. The cases of La Guerra v. Brasileiro, 2 Cir., 1942, 124 F.2d 553, certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. 1220, and Fodera v. Booth American Shipping Corporation, 2 Cir., 194......
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...the result is the same; the burden of proving contributory negligence should have been placed upon the defendant. La Guerra v. Brasileiro, 2 Cir., 124 F. 2d 553, 555-556, certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. It is also contended that error was committed in charging that th......
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