Huber v. American President Lines
| Decision Date | 06 February 1957 |
| Docket Number | Docket 24183.,No. 97,97 |
| Citation | 240 F.2d 778 |
| Parties | Fred HUBER, Plaintiff-Appellant, v. AMERICAN PRESIDENT LINES, Limited, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Rassner, New York City, Dorothy Kelleher Meehan, New York City, on the brief, for appellant.
Symmers, Fish, Warner & Nicol, New York City, William G. Symmers, William Warner and William A. Wilson, New York City, of counsel, for appellee.
Before SWAN, MEDINA and WATERMAN, Circuit Judges.
Appellant, a seaman employed on a vessel of the appellee, brought this action under the Jones Act, 46 U.S.C.A. § 688, and the general maritime law to recover for personal injuries sustained in a fall on a catwalk constructed to make possible passage along the deck without climbing over deck cargo. A jury trial was waived. On motion of the defendant, the court dismissed the complaint at the close of the plaintiff's evidence. Findings of fact were made in Judge Walsh's (unreported) opinion. The appeal challenges the power of the court to weigh the evidence and decide on the merits at the close of the plaintiff's case, and attacks as clearly erroneous certain of the court's findings of fact and its conclusion that neither unseaworthiness of the vessel nor negligence of the defendant caused the plaintiff's injuries.
The contention that the district judge was not empowered to dismiss on the merits under Rule 41(b), Fed.Rules Civ.Proc., 28 U.S.C.A., because the evidence established a prima facie case that would have precluded a directed verdict for the defendant in a jury trial, is without merit. The 1946 amendment to the Rule eliminated any doubt which might previously have existed.1
In October 1952, appellant shipped as bo'sun on the appellee's vessel President Arthur. The vessel proceeded from the port of New York to Wilmington, California, the port of Los Angeles. On October 24, 1952 while she was still tied to her pier at Wilmington appellant, in walking aft along the catwalk, sustained a fall. At the time of the accident all concerned thought he had merely sprained his left ankle, and he did not ask to be relieved from duty. Several weeks later, at the port of Yokohama, it was discovered that he had fractured a bone. He continued with the ship until her return to New York. On July 9, 1953 he brought this action, which was tried in November 1955. Judgment of dismissal was entered January 27, 1956.
The appellant's testimony was to the effect that his fall was caused by tripping over a wire protruding near the edge of the catwalk and not seen by him because of inadequate lighting of the catwalk. He admitted that the vessel was then tied to the pier. Judge Walsh's opinion finds that the vessel "actually left the pier at 6:16 or thereabouts"; that "the defendant had the light which you have customarily during the last hour of daylight on a fall day"; and "I do not accept any testimony that it was dark." These findings the appellant claims are unsupportable.
As to the first, he asserts that the vessel left the pier at 7:15. For this he relies upon the vessel's log book which records her "departure" from the port of Los Angeles at 7:15. But "departure" is not synonymous with undocking.2 The log shows that the undocking tug was made fast alongside at 6:03, at which time the vessel's lines to the dock were singled up, and at 6:20 she was under way with all her lines on board. The finding as to when she left the pier is correct.
Appellant's argument that the court erred in finding it was not dark when the accident happened is based on the report of the Los Angeles Weather Bureau that on October 24, 1952 the sun set at 5:09 P.M., and twilight continued for only 25 minutes. But, as demonstrated in the appellee's brief, although "civil" twilight ended at 5:34 P.M., "astronomical" twilight ended one hour and twenty-four minutes after sunset. Hence darkness did not set in until 6:33 P.M., which was at least fifteen minutes after the accident, since that happened while the vessel was still tied to her pier. The accident may have happened some time before the vessel left her pier "at 6:16 or thereabouts." The plaintiff testified that when he tripped over the protruding wire he fell into an eight-foot break in the catwalk, this portion having been removed to facilitate handling the ship's gear. If he fell into the temporary break in the catwalk, the accident happened before 5 P.M. for the mate's testimony in a deposition, which the plaintiff introduced, was that he inspected the after deck between four and five o'clock and saw the...
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