Helton v. United States, Civ. A. No. H 67 C-18.

• Decision Date: 02 April 1969
• Docket Number: Civ. A. No. H 67 C-18.
• Citation: 309 F. Supp. 479
• Parties: Vona HELTON, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. J. T. ARNOLD, III, in personam, and a certain unnamed ferry-barge, her tackle, equipment, etc., in rem, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

309 F. Supp. 479

Vona HELTON, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. J. T. ARNOLD, III, in personam, and a certain unnamed ferry-barge, her tackle, equipment, etc., in rem, Third-Party Defendants.

Civ. A. No. H 67 C-18.

United States District Court, E. D. Arkansas, E. D.

April 2, 1969.

James R. Van Dover, Daggett & Daggett, Marianna, Ark., for plaintiff.

Hall Baetz, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., and Robert F. Fussell, Asst. U. S. Atty., Little Rock, Ark., for defendant and third-party plaintiff.

Mike J. Etoch, Jr., Helena, Ark., for third-party defendants.

MEMORANDUM OPINION

OREN HARRIS, Chief Judge.

This action by the plaintiff, Vona Heltion, is a claim against the United States of America seeking damages for personal injuries allegedly caused by the negligence of an employee of the United States of America. The United States denied liability to the plaintiff and pursuant to the approval of the court filed a third-party complaint against J. T. Arnold, III, in personam, and a certain unnamed vessel, in rem, alleging that third-party defendants were liable to the plaintiff, or in the alternative to indemnify the government in the event the United States of America is determined to be liable to the plaintiff.

FINDINGS OF FACT

On September 8, 1964, J. T. Arnold, III, contracted to supply gravel to the United States. Under the contract, Arnold was obligated to deliver gravel to specified points on a levee in Eastern Arkansas, on the east side of the St. Francis River. The methods of transport were at the sole discretion of the contractor. Arnold chose to obtain the gravel from a pit on the west side of the river, near Phillips Bayou, Arkansas. To transport it across the river he purchased a barge and brought it to the Phillips Bayou ferry crossing. Arnold made an agreement with Lee County that he would transport passengers across the river in exchange for the right to substitute his ferry-barge for the regular county barge which was on the line. The small county barge was removed and Arnold's was substituted. Arnold employed regular crewmen to operate his barge.

Vona Helton was a farmer and a part-time employee of Arnold. During the winter, when because of the weather Arnold was not hauling, Helton was regularly employed to watch Arnold's barge, keeping it properly moored, pushed off, etc. On July 8, 1965, the day he was injured, Helton wanted to cross the river to his farmland on the other side.

Donald Tyner was a United States Corps of Engineers gravel inspector. His job, as provided in his job description sheet, was to check gravel quality and ensure that it was properly delivered to the levee. Tyner's inspection duties did not include manual labor at or around the job site. His duties were limited to inspection. Tyner was stationed near the job site. When Arnold was hauling, Tyner would check the gravel on the west side of the river and then he would ride across on Arnold's ferry to the east side to see that the gravel had been delivered. When Arnold was not hauling, Tyner was to report to his superiors in Memphis for other work. Tyner was not employed to assist Arnold in any way. Tyner had never worked in any capacity on Arnold's ferry prior to July 8, 1965.

Arnold hauled gravel on November 11, 12, 13, 14 and 16, 1964, and thereafter shut down for the winter. On July 6, 1965, Arnold began hauling again. But on July 7 and 8, 1965, problems with the gravel pit caused him to stop work.

On July 8, 1965, Tyner came to the job site. As Arnold was not hauling, Tyner desired to return to Memphis. Although he could have taken the longer route to Memphis, Tyner told Arnold that he would like to be put across on the barge so he could take the shorter route. Arnold replied that he would be glad to transport Tyner across, and that Helton also wanted to cross. Arnold and Helton walked, and Tyner drove down to the ferry. There were no regular crewmen on duty.

The ferry had ramps at either end. The ramps were counter-balanced, connected by free running cables extending through pulleys on frameworks at either end of the barge. Each apron was supported by the weight of the other by means of the taut connecting cables. Another cable ran through pulleys and passed around a reduction winch drum. The connections of the support cables and winch cable were arranged so that when the winch was turned one apron was raised and the opposite one was lowered. However, if one apron rested on the riverbank and the other apron was raised, there would be no counterbalancing effect. In such event, the entire energy necessary to raise the riverward apron would have to come from the winch. Turning the winch in the wrong direction would lead to increasing tension on cable to the riverward apron, as the shoreward apron could not move down. Thus, the weight load of the riverward apron would be transferred from the support cable to the winch cable.

When they arrived at the ferry, Arnold told Helton to get a hold on the winch and crank the shoreward apron up off the bank. Tyner, meanwhile, drove his truck aboard. Helton walked over to the winch and began turning it. Tyner drove across the ferry to raise the shoreward side off the bank, and got out of his truck. Arnold said to Tyner "you had better help that fellow over there, he is pretty old to raise and lower the aprons." Helton had by this time turned the crank several times.

Tyner walked over and faced Helton. Tyner stood with his back to the riverbank, facing away from the apron being raised. Helton stood facing the other direction, looking toward the bank and the apron he was trying to raise. The crank handle was passed from one to the other on each revolution. Helton, who was facing shoreward, failed to notice that the shore apron was not coming up. He kept on cranking.

On each revolution Tyner would pass the crank handle over to Helton, who would in turn pass it back. In the process Helton picked up a short piece of steel to use to lock the cogs. Thereafter he turned the crank with one hand.

The crank became harder to turn. Tyner realized that insufficient progress was being made, and stated that there must be something wrong. Arnold said that if the crank was hard to turn, it was being turned the wrong way. Tyner told Helton he was going to have a cigarette. Helton at this time was holding the crank with one hand, without apparent difficulty. Tyner turned and walked about ten feet away. Several seconds passed. Helton made no protest and gave no indication of difficulty. Then, without warning or a request for assistance, Helton began to turn again with one hand. He moved the crank one and a half or two revolutions. He was apparently trying to line up the cogs so that he could lock the crank with the metal bar. The crank suddenly started turning very fast, and Helton released it and jumped out of the way. The rapidly spinning crank struck him on the arm, injuring him.

Helton had incorrectly begun turning the winch the wrong way. He testified that he believed that simply because the winch had a crank it would have to turn to the right. He believed that to turn the winch to the left would be backwards. He requested no instructions, and did not check to see that the apron was being raised. When Tyner walked away, Helton did not complain, nor did he request assistance when he began to turn again.

From these facts developed during the trial of the case, ore tenus testimony, exhibits and stipulations it is the opinion of the court that the United States of America should not be held liable to the plaintiff, Vona Helton, for any damages as a result of personal injuries that may have been sustained in connection with this incident.

CONCLUSIONS OF LAW

Admiralty jurisdiction in a tort case is dependent upon the character of the waters upon which the occurrence takes place. The admiralty jurisdiction extends to suits for personal injuries to a crewman, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), a land worker doing a crewman's job, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), or a passenger, The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935), occurring while aboard a vessel on navigable waters.

The question of whether a river was navigable for purposes of the admiralty jurisdiction was carefully analyzed in In re River Queen, 275 F.Supp. 403 (W.D. Ark.1967), aff'd sub nom. George v. Beavark, Inc., 402 F.2d 977 (8 Cir., 1968). In affirming the district court, the circuit court stated that the test is whether a water course is susceptible of use for purposes of commerce and capable of practical general uses. The court of appeals mentioned the trend toward liberality in the treatment of admiralty jurisdiction.

It was stipulated by the parties prior to trial that the St. Francis River is navigable in fact at the place where this accident occurred. The ferry-crossing is located at a point less than four miles from the confluence of the St. Francis River with the Mississippi. The ferry-barge involved in the accident, approximately 80 feet by 20 feet, was towed upriver via the Mississippi from Helena for use in the graveling operation. The river was quite wide at Phillips Bayou, and no obstructions blocked navigation between there and the Mississippi. As the St. Francis at that point was navigable and susceptible of being used as a highway for commerce, this case is within the admiralty jurisdiction of this court. 46 U.S.C.A. § 740, 28 U.S.C.A. § 1333.

To establish governmental liability in this case, plaintiff must show (1) that Tyner, at the time of the accident, was acting within the scope of his employment as a servant of the Government, and (2) that Tyner was negligent.

In deciding whether the driver of a Government vehicle was acting within the scope of his employment, this court said, in Watt v. United States, 123 F.Supp....