Hagans v. Farrell Lines, 11703.

• Citation: 237 F.2d 477
• Decision Date: 10 July 1956
• Docket Number: No. 11703.,11703.
• Parties: James HAGANS, Appellee, v. FARRELL LINES, Inc., Appellant, v. Lavino Shipping Company, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

237 F.2d 477 (1956)

James HAGANS, Appellee, v. FARRELL LINES, Inc., Appellant, v. Lavino Shipping Company, Appellee.

No. 11703.

United States Court of Appeals Third Circuit.

Argued January 13, 1956.

Decided July 10, 1956.

Rehearing Denied September 25, 1956.

Mark D. Alspach, Philadelphia, Pa. (Joseph J. Murphy, Robert W. Bikle, Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant.

Thomas F. Mount, Philadelphia (Rawle & Henderson, Joseph W. Henderson, Philadelphia, Pa., on the brief), for Lavino Shipping Co.

Milton M. Borowsky (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for James Hagans.

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

The plaintiff, James Hagans, brought this civil action, founded upon the diversity jurisdiction of the district court, against Farrell Lines, Inc. ("Farrell"), to recover damages for personal injuries sustained in the course of discharging cargo from the latter's vessel, S.S. "African Dawn". Hagans was a longshoreman in the employ of Lavino Shipping Co. ("Lavino"), a concern performing stevedoring services for the vessel. His complaint alleged negligence and unseaworthiness. Farrell joined Lavino as third-party defendant, alleging in its third-party complaint that Hagans' injuries were the result of Lavino's negligence, of unseaworthy conditions created by Lavino, or of open unseaworthiness of which Lavino had knowledge and to which it "deliberately" subjected its employees. Farrell sought indemnity from Lavino in the event it was held liable to Hagans.

The matter was tried before a jury, which returned a general verdict in favor of Hagans in his action against Farrell, and against Farrell in its third-party action against Lavino. The jury also answered specific interrogatories, about which more will be said later. The district court entered judgment in accordance with the general verdict and Farrell has appealed asserting errors in the instructions given by the court to the jury and in the denial of its request for binding instructions in its favor against Lavino.

The facts may be stated as follows:

The S.S. "African Dawn", arriving late at Philadelphia, Pennsylvania, on December 4, 1951, was moored in the middle berth of the south side of Pier 98 at about 2:00 o'clock p. m. Four gangs of longshoremen were assigned by Lavino to discharge her cargo, Hagans being positioned on the pier to assist in the discharge from the vessel's No. 4 hatch, the only hatch with which we are here concerned.

To discharge the cargo, the forward booms and winches of the No. 4 hatch were rigged with the offshore boom positioned over the hatch and the inshore boom extending over the pier. The after booms were not used because the booms would have been too low for the cargo to clear the ship's rail. The winches were electrically driven. To pay out cable, the winch operator would move hand control levers forward; to raise the cargo, he would move them backward. To stop the movement, he would put the levers in a "neutral" position, which called into play an automatic brake. Because of the position of the winches, the winch operator could not see into the wings of the hold or over the side of the vessel. Consequently, he depended upon hand signals from the longshoreman assigned as a hatch tender. The system followed was for the hatch tender to stand next to the inshore coaming of the hatch while the draft was being made up in the hold, giving the signal to the winch operator to remove the draft when ready. As that was done, he would cross over the deck to the ship's rail and signal the lowering of the draft onto the pier.

When the booms had been rigged and before the first longshoreman commenced to operate the No. 4 hatch winches, a ship's electrician had completed making some adjustment to the control box on the inshore winch. The electrician told the operator, Oliver, that it was all right to use the winch, and a ship's officer was standing by. Shortly thereafter, in moving hatch covers, Oliver noticed that from time to time when he placed the levers in neutral the load would not hold fast. When he commenced to move cargo, he noticed that as the load was stopped in transit it sometimes would "drift" past his target.

A "couple" of drafts had been removed from the hold when orders were given to rig up a "save-all", i. e., a rope net spread between the vessel and the pier to catch cargo which might otherwise fall into the water as it was being moved in a sling from the hold to the pier. Oliver pulled the "save-all" up with the winch, then changed positions with his hatch tender, Harris, in accordance with a practice to rotate positions at fixed intervals. Oliver assisted in tying the "save-all" ropes at the ship's rail, and Hagans at the pier edge. After one draft had been moved, someone called to tighten the "save-all". Hagans was still engaged in tightening one of the ropes when a draft of bags of cocoa beans, weighing about a ton (which was light for the equipment), moved over the rail of the ship. Oliver had previously signalled for the draft to come out of the hold, and would have preceded the draft to the rail, except for the fact that he stumbled over a padeye welded to the ship's deck. Seeing Hagans bent over near the edge of the pier, Oliver signalled the winch operator to stop the draft and called to Hagans. The draft was then moving at its slowest speed and was about twelve to fifteen feet above the pier. The winchman immediately moved the levers into neutral, and a click was heard. However, the load "drifted" down, five or six feet of cable running off the winch drum, striking Hagans about the head and shoulders as he was about to stand up. The draft came to rest about three feet above the pier. The time of the accident was about 3:30 o'clock p. m.

Oliver told one of his fellow workers that the winches were not "acting right" soon after he commenced to use them, and after he finished his turn at the winches, which was just before the accident, he told his hatch foreman, Collick. Harris noticed that there was a "drift" of four to five feet after he took over the winches. There was evidence that in the normal use of a winch it sometimes "drifted" because the automatic brake became loose, and that the ship's electrician would make repairs. In this instance, after the accident the ship's electrician made some repairs to the winch involved, but there was still some drift.

The winches were ship's equipment, maintained and repaired by the ship's personnel. The contract between Farrell and Lavino required the ship to supply to Lavino adequate winches in good order. There was evidence, too, that the obligation to repair the winches was upon the ship, and that the stevedores were not permitted to make repairs.

The jury, immediately prior to returning its verdict, submitted to the district judge the following questions:

"1. If we conclude that the winches were defective and were the principal cause of the accident and the employees of Lavino only incidentally negligent must the verdict between Farrell and Lavino be in favor of the defendant Lavino?"

"2. If the answer to that question is yes may we now give our verdict?"

The district judge answered both questions affirmatively, and the jury stated that it was ready to render its verdict although it was offered further opportunity for deliberation.

The jury's general verdict, as already stated, was against Farrell and in favor of the plaintiff, Hagans, and the third-party defendant, Lavino. In addition, the jury found,¹ in answer to specific interrogatories, that the winch involved was defective, that such defect was not the sole cause of the accident, that there was concurring negligence on the part of Lavino's employees, but that such concurring negligence was not the sole cause of the accident, and that Hagans was not contributorily negligent. We think it a necessary conclusion from the question addressed to the court by the jury, and the general verdict, that the jury must also have concluded that the defective winch was the substantial cause of the accident, and that the negligence of Lavino's employees was not a substantial cause of the accident.

The district court entered judgment in accordance with the general verdict, and Farrell prosecuted this appeal. It is our opinion that the judgment must be affirmed.

Insofar as the controversy between Hagans and Farrell is concerned, Farrell premises its appeal upon two alleged errors in the trial court's instructions to the jury. First, it maintains that the court, in reciting the evidence, assumed the truth of Hagans' evidence that there was a defect in the winch, and therefore the charge was "one-sided". Second, it maintains that the trial judge instructed the jury to disregard the expert medical testimony in determining the extent of Hagans' injuries. Neither contention is meritorious.

There is no question whatsoever that the district judge carefully placed the fact-finding job in the hands of the jurors, advising that their recollection of the evidence must control. The court merely recited the manner in which it was contended that the accident happened, albeit using the language of the witnesses that the load "drifted", and indeed, this was the only way in which the accident was described. The issue, whether the winch was defective was specifically left to the jury upon "the testimony of all of the witnesses, both for the plaintiff and the defendant." A review of the charge fails to convince us that the jury should have felt restricted in reaching the conclusion, which it did in answer to a specific interrogatory, that the winch was defective. A review of the evidence, however, leads to the conclusion that the jury could hardly have reached any other result.

The transcript of the court's charge included in the original record reports the following instruction:

"You heard all these doctors and I will not touch upon

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