Johnson v. New York, NH & HR Co., No. 74

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: SWAN, , FRANK, Circuit , and COXE
• Citation: 194 F.2d 194
• Parties: JOHNSON v. NEW YORK, N. H. & H. R. CO.
• Decision Date: 04 February 1952
• Docket Number: Docket 22134.,No. 74

194 F.2d 194 (1952)

JOHNSON
v.
NEW YORK, N. H. & H. R. CO.

No. 74, Docket 22134.

United States Court of Appeals Second Circuit.

Argued November 8, 1951.

Decided February 4, 1952.

194 F.2d 195

Edward R. Brumley, New York City, for appellant; Robert M. Peet, New York City, of counsel.

David M. Fink & Jacquin Frank, New York City, for appellee; Jacquin Frank, New York City, of counsel.

Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.

SWAN, Chief Judge.

This is an appeal by the defendant from a judgment for the plaintiff after trial to a jury in an action brought under the Jones Act, 46 U.S.C.A. § 688, to recover damages for the death of the plaintiff's intestate. The decedent was an experienced floatman employed on the defendant's tug "Transfer No. 10." He met his death by drowning on April 22, 1946 while the tug was removing two empty carfloats from defendant's Oak Point railroad yard on the East River. No eyewitness saw the accident, nor was the fact of the floatman's death known until after the tug had completed its maneuver. His body was later discovered floating in the slip close to the apron of Bridge 12. The questions raised by the appeal are (1) whether there was adequate proof of the defendant's negligence, and (2) whether, if negligence was proved, there was proof that such negligence caused the decedent's death. These questions were raised below by a motion for a directed verdict which the court reserved and denied with an opinion after the jury's verdict.

The carfloats which the tug removed from the Oak Point yard were numbered 53 and 58. Carfloat 53 was in Bridge 11 and carfloat 58 in Bridge 12; each was lying bow in and was 340 feet in length and 40 feet wide. Between the bridges was a pier about 50 feet long referred to in the testimony as the "short rack." On the outer sides of the bridges were longer piers referred to as "long racks." The floats were held in the bridges by rack lines. Testimony as to how the maneuver of removing the floats was performed was given by the master and mate of the tug. The captain put the bow of the tug against the port stern quarter of float 53, and the mate Gaglio then stepped aboard float 53 and went

194 F.2d 196

toward its stern to secure the sterns of the floats with a line as soon as the tug had pushed them together. Having performed this duty, Gaglio returned to a place on the float near the tug to handle the tug's bow line. Johnson, the floatman, had followed Gaglio on to the 53 and when last seen alive was walking toward its bow. His duty was to release the short rack line in Bridge 11, go ashore and cross over to Bridge 12, get aboard float 58, release the short rack line in Bridge 12, and then shout "all gone" as a signal that the floats were ready to be moved. He was then to remain at the bow of the 58 in readiness to secure the bows of the two floats when they came together after being pulled clear of the short rack. From the tug's pilot house Capt. O'Brien saw that both rack lines in Bridge 11 and the long rack line in Bridge 12 were released. The short rack blocked vision of the short rack line in Bridge 12 to Capt. O'Brien and also to the mate. Both of them heard the shout "all gone" but each testified that he could not identify the voice as Johnson's because of the distance of the shouter. When Capt. O'Brien...