Holm v. Cities Service Transp. Co., 409.

• Decision Date: 18 July 1932
• Docket Number: No. 409.,409.
• Citation: 60 F.2d 721
• Parties: HOLM v. CITIES SERVICE TRANSP. CO.
• Court: U.S. Court of Appeals — Second Circuit

60 F.2d 721 (1932)

HOLM v. CITIES SERVICE TRANSP. CO.

No. 409.

Circuit Court of Appeals, Second Circuit.

July 18, 1932.

Hatch & Wolfe, of New York City (Carver W. Wolfe, of New York City, of counsel), for appellant.

Simone N. Gazan, of New York City, for appellee.

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

CHASE, Circuit Judge (after stating the facts as above).

Though somewhat greasy decks were necessarily concomitant to loading, this did not do away with the duty of the defendant to use whatever care was required to prevent excessive accumulations of oil in places where they would be dangerous to a person rightfully using the deck. That this defendant was guilty of negligence in permitting the pool of oil, in which the plaintiff slipped, to gather and remain where it was, must now be taken for granted. To this extent a jury question was presented. Sebald Brewing Co. v. Tompkins (C. C. A.) 221 F. 895. And we will consider what else is in the case upon the assumption that the defendant's negligence has been established. Furthermore, the plaintiff was acting within the scope of his employment in returning to his room from the place to which he had to go for a drink of cold water. States S. S. Co. v. Berglann (C. C. A.) 41 F.(2d) 456, 457.

The plaintiff was off duty at the time he was injured. After he had gone to the poop deck, he was free to return to his room over the flying bridge as he had come or by the route he chose. He was not acting under orders. He knew the hose connections had been leaking; he knew they would continue to leak while the ship was being loaded; and he knew the loading was still going on. He knew the well deck over which he started to return was greasy, and he knew there were leaking connections near his path. In a word, he had actual knowledge that he would find the well deck slippery. He did not know that there was a pool of oil in his path, but he did know that pools had formed there and might form again until the loading stopped, whether the first mate had had the decks cleaned as he promised when he relieved Holm in the middle of the afternoon or not. Knowing all this, the plaintiff did not see fit to go back over the flying bridge which, though somewhat tracked with oil, must be taken to have been safe for walking, but elected to return by way of a deck he knew was greasy and would be slippery. If the defense of assumption of risk is available under the Jones Act, it seems very plain that it has been made out. The plaintiff knew what to expect on the deck he used for his own convenience in taking the shorter way back to his room, and found there only what was to be expected. The plaintiff freely chose a way to return which he knew was slippery instead of going back as he had come. Hardie v. New York Harbor Dry Dock Corporation (C. C. A.) 9 F.(2d) 545.

The Jones Act, § 33 (46 USCA § 688) provides that "all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply." It has brought new rules into the admiralty law which a seaman may elect to invoke. Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. In section 4 of the Federal Employers' Liability Act (45 USCA § 54) the defense of assumption of risk is taken away only where the violation by a common carrier of a statute enacted for the safety of employees contributed to the injury or death of an employee. Otherwise it is an available defense. Seaboard Air Line R. R. Co. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. Southern R. R. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970; D., L. & W. R. R. Co. v. Koske, 279 U. S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Biernacki v. Penn R. R. Co., 45 F.(2d) 677 (C. C. A. 2). As there was here no violation of such a statute as is mentioned in the Federal Employers' Liability Act, the question whether assumption of risk is ever a defense under the Jones Act is squarely presented.

Where a seaman is injured when acting under orders, he does not assume the risk. Panama R. R. Co. v. Johnson (C. C. A.) 289 F. 964; Masjulis v. Shipping Board, 31 F. (2d) 284 (C. C. A. 2). The defense of assumption of risk is not available when a seaman so injured sues to recover because his duty to obey the order of a superior is so compelling that a rule of law based on the maxim "volenti non fit injuria" cannot be applied. Where the conduct of the injured seaman, however, is induced only by his own free will, and he acts to his injury at a time and place when he is free to choose between doing what is safe and what is known to him to be dangerous, he is obviously under no more compulsion than is an employee on land. In States S. S. Co. v. Berglann, supra, it was recognized that a seaman assumed all ordinary risks of his employment...