Howarth v. UNITED STATES SHIPPING BOARD EMERGENCY F. CORP.
| Citation | 24 F.2d 374 |
| Decision Date | 06 February 1928 |
| Docket Number | No. 110.,110. |
| Parties | HOWARTH v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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Silas B. Axtell, of New York City (Saul Sperling, of New York City, of counsel), for plaintiff in error.
Ralph C. Greene, U. S. Atty., of Sayville, N. Y., Edgar G. Wandless, Dist. Counsel for United States Shipping Board of New York City (Charles A. MacDonald, of counsel), for defendants in error.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
The vital facts in this case were in dispute. Was the plaintiff, upon the occasion of the accident, engaged in opening the door, and, if so, was he furnished with such a defective appliance for keeping it open that the rolling of the vessel was likely to slam it suddenly and injure him, or was he closing the door, as the cook testified? If the latter, he should have kept hold of the door handle, and, had he done so, would have experienced no harm. The absence of the hook could not have affected him, if he had been shutting the door. Whether he was opening the door, and whether the only available appliance for holding it open was a safe and proper one, or whether he was closing the door, were all questions of fact for the jury.
It is argued that the fire brick was a safe door stop, and had worked well enough before; but a different inference may be drawn, and a jury ought to have been allowed to say whether the defendant should have maintained a hook on the door to hold it securely back, or whether the brick provided in place of the missing hook was a reasonably safe appliance, in view of the tendency of ships to pitch and roll in rough weather. The dismissal of the cause of action to recover indemnity was error. If the door without the hook was unsafe, the acts of defendants in furnishing an unsafe appliance would be negligent. The Merchant Marine Act of 1920 allows recovery for negligence. 41 U. S. Stat. at Large, p. 1007 (46 USCA § 688 Comp. St. § 8337a).
While there was evidence before the trial court that the hook was broken off before the vessel left port, so that there was some foundation for the claim that the ship was unseaworthy in equipment when she broke ground, there need be no consideration of the technical rule as to unseaworthiness. Zinnel v. U. S. Shipping Board Emergency Fleet Corp. (C. C. A.) 10 F.(2d) 47. A jury must...
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