Hampton v. Magnolia Towing Company, 21229.

• Decision Date: 16 October 1964
• Docket Number: No. 21229.,21229.
• Citation: 338 F.2d 303
• Parties: William Neil HAMPTON, Appellant, v. MAGNOLIA TOWING COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.2d 303 (1964)

William Neil HAMPTON, Appellant, v. MAGNOLIA TOWING COMPANY, Inc., Appellee.

No. 21229.

United States Court of Appeals Fifth Circuit.

October 16, 1964.

Gibson Tucker, Jr., and Tucker & Schonekas, New Orleans, La., Ellis J. Farris, Vicksburg, Miss., for appellant.

William G. Beanland, Vicksburg, Miss., Brunini, Everett, Grantham & Quin, Vicksburg, Miss., of counsel, for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and McRAE, District Judge.

WISDOM, Circuit Judge:

William Neil Hampton was employed as senior deck hand on board the M/V Yazoo, a standard river pushboat owned and operated by The Magnolia Towing Co. March 4, 1962, the Yazoo was proceeding north up the Illinois River pushing a flotilla of six barges. The barges were in two parallel strings and five were empty; the one loaded starboard barge rendered the tow unbalanced to starboard.

The Yazoo was faced up toward the port side of the tow. As night was falling, between 6:00 and 6:30 P.M., the captain decided to move the pushboat a little to the starboard to facilitate steering and reduce the strain on the rudder. The evening was cold and there were occasional snow flurries. A strong wind from the west or northwest was blowing across the river.

The Yazoo was attached to its tow by means of two steel cables (face wires), one on the starboard and one on the port. These cables were attached to bollards on the rearmost barges and ran back around a button or cleat on the pushboat to two Nabrico winches located near the bow. To carry out the move to starboard, the captain ordered Hampton to slack off the port face wire. Hampton accomplished this by disengaging the release on the port winch and paying out some cable. When there was sufficient slack, he went across onto the tow and moved the port face wire to an inboard bollard and returned to his position at his winch where he could tighten up slack when the move was finished. Another deck hand was stationed at the starboard winch to take up any slack created by the shift.

The Nabrico winches faced aft and had large take-up wheels on their inboard sides. Each take-up wheel had a wooden handle or knob to facilitate winding. The winches were equipped with ratchets made up of mechanical dogs (pawls) which fit into the teeth of large cog gears (ratchet wheels). When the dog was engaged, the cable could be taken up but could not be paid out. In order to create the necessary slack, Hampton disengaged the dog on his winch; when sufficient cable was paid out, he did not reengage the dog.

The captain ordered the engines stopped while the shift took place. There is a conflict in the testimony as to whether the Yazoo and its tow were drifting in the water making no headway or whether the flotilla was still moving slowly upstream. As the pushboat was maneuvered into its new position, it snubbed up against the barge and bounced back putting tension on the face wires. Hampton's dog was still disengaged and the tension caused the winch to pay out some cable. The sudden tension caused the take-up wheel to spin rapidly. Hampton did not anticipate this spin and the wooden handle on the wheel hit him on the arm as it swung around resulting in a comminuted fracture of his left ulna.

Hampton's suit against his employer combines a Jones Act (46 U.S.C.A. § 688) claim for negligence with a general maritime claim for unseaworthiness. His allegation of negligence is based on the theory that a reasonably prudent captain would not have attempted the shift in open water under the hazardous weather conditions prevailing at the time. Rather he would have tied up alongshore and effected the shift while the tow was stationary. Hampton contends that the captain's actions were particularly imprudent because the captain was unable to see either winch from his position in the wheelhouse and was able to communicate with his deck hands in order to coordinate the action only by means of an inconveniently placed two-way voice box.

The defendant contends that the shifting operation was purely routine and could be done and was done in all kinds of weather. The defendant asserts that Hampton's negligence was the proximate cause of the accident; that a reasonably prudent deck hand would have reengaged the mechanical dog after letting out the necessary slack in the face wire. Had the dog been engaged, the take-up wheel would not have run away and the handle would not have struck Hampton.

After denying defendant's motions for a directed verdict, the district court submitted the case to the jury on special interrogatories. The jury returned and found that the shipowner was negligent, the boat was not unseaworthy, and Hampton was not negligent. The jury awarded Hampton $10,000 as compensatory damages.

The defendant moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. The district court determined that the jury's verdict was not based upon sufficient evidence and granted the motion for a judgment n.o.v. Following the procedure dictated by Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, the district court ruled conditionally on the motion for a new trial, denying it in the event that its judgment n.o.v. was reversed. The plaintiff brings this appeal from the judgment n.o.v. and the defendant cross-appeals the denial of the motion for new trial.

"The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Jacob v. City of New York, 1942, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166.

The Jones Act proffers this right and we exercise the greatest caution in denying it to any litigant. See Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668; Street v. Isthmian Lines, Inc., 2 Cir. 1963, 313 F.2d 35; Carter v. Schooner Pilgrim Inc., 1 Cir. 1956, 238 F.2d 702.

The limits under the Jones Act, incorporating the FELA by reference, are broadly drawn and broadly construed. The employer may be held liable if his negligence "played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, at 506, 77 S.Ct. 443, at 448, 1 L.Ed.2d 493 at 499; Ferguson v. Moore-McCormack Lines, Inc., 1957, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511. Contributory negligence and assumption of the risk are not adequate defenses. Jacob v. City of New York, supra.

In reviewing a judgment n.o.v. for the defendant, we must accept all facts which the plaintiff's evidence reasonably tends to prove and all favorable inferences which are fairly deducible. Cline v. Southern R. Co., 4 Cir. 1940, ...