Kruhlinski v. New York, New Haven & Hartford R. Co.

• Decision Date: 22 March 1963
• Citation: 217 F. Supp. 723
• Parties: Bernard KRUHLINSKI, Plaintiff, v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

217 F. Supp. 723

Bernard KRUHLINSKI, Plaintiff, v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY, Defendant.

United States District Court S. D. New York.

March 22, 1963.

Joseph Friedberg, New York City, for plaintiff.

Robert M. Peet, New York City, for defendant.

McGOHEY, District Judge.

The plaintiff, a seaman, alleging that his employer, the defendant, was negligent and its vessel unseaworthy, sues for damages and for maintenance and cure. The parties waived a jury and the case was tried to the court. The findings and conclusions appear in the opinion.

The claimed injuries allegedly were sustained at about 6:30 A.M. on December 4, 1956, when the tug "Transfer 21," owned, operated and controlled by the defendant, on which the plaintiff was serving as mate, was making fast to a car float at Greenville, New Jersey. It is alleged that the master was negligent in causing the tug to move without warning Kruhlinski and that both the master and crew were incompetent, thereby rendering the tug unseaworthy.

At the time of the accident Kruhlinski, who was then sixty-one years old, had been serving on New Haven tugs for about fifteen years. The crew of which he was a member started work at midnight on December 3 at Bay Ridge, Brooklyn. At about 4:00 A.M. the tug put a full supply of oil into her fuel tanks located at the forward end of the vessel. Her draft, after taking on the oil, was 10 ft. forward, 13 ft. aft. It was not disputed that it is harder to stop and start the tug when her fuel tanks are full.

At about 6:30 A.M. the tug arrived at Greenville to deliver two car floats and pick up two others. The latter were so located that the tug could move, bow-in, between them. She did so and then came to a full stop. The deck crew then proceeded to make one float fast on her starboard side and the other on her port side. Kruhlinski, while standing on the tug's deck on the starboard side amidship, put a line onto a cleat on the car float and then made it fast to a towing bit on the tug. He then proceeded to the after end of the tug to make a line fast from her stern quarter bit, to another cleat on the float.

When a tug is made fast amidships alongside a car float there is necessarily some distance between the latter's side and the tug's stern. Here that distance was about five feet and the distance between the tug's stern quarter bit and the side of the float was about three or three and a half feet. It was Kruhlinski's intention, according to his testimony, to get up onto the float and then take a line which was to be passed to him by one of the tug's deck hands and make it fast to a cleat on the float. He stepped up on the stern quarter bit and, while attempting to climb from it to the deck of the float, he slipped and fell. The left side of his chest, three or four inches below the armpit, struck the side of the float. He grabbed the edge of the float's deck and hung down along its side for a moment before dropping into the water. In a matter of minutes the master and two of the tug's deck hands pulled him out and brought him to the tug's galley where he was given dry clothes, coffee and aspirin. When the tug got back to Bay Ridge, he went home with his son who had been notified of the accident. Later the same morning he visited a Dr. Wiener, located near his home, who examined him, gave him "some pills," and bandaged his chest.

On December 7, 1956, Kruhlinski went to the United States Public Health Service Hospital on Staten Island, New York. An X-ray taken there disclosed no evidence of rib fracture. The "Doctor's Progress Notes" noted "Chest film essentially negative. Things fairly clear; few scattered wheezes at present. May be due to bronchitis or mild asthma. Main problem is a fall a few days ago." Kruhlinski was marked fit for duty and he worked the next day, December 8.

Kruhlinski made three visits — on December 12, 14 and 18 — to Dr. Joseph Deutsch, a general practitioner and surgeon who since 1956 has examined and treated injured employees of the defendant, which pays him by the case. On the first visit Kruhlinski complained of tenderness and soreness of the chest on the left side, about the area of the ninth and tenth ribs. He made no complaints about the extremities. Dr. Deutsch found considerable tenderness but no external evidence, such as discoloration. The heart sounds were "regular" and of "fair quality." Dr. Deutsch advised treatment of "probable fracture," upon which recommendation X-rays were taken. Upon examination of the X-rays, Dr. Deutsch noted that "no abnormality can be seen."

On the two succeeding visits, Dr. Deutsch noted a lessening of hypertension and of tenderness of the chest area.

On December 26, 1956, Kruhlinski was admitted to the Public Health Service Hospital at Staten Island and remained there until his discharge on January 29, 1957. The diagnoses, and condition on discharge, were: hypertensive cardiovascular disease, stretching of ulnar nerve, and multiple contusions of chest, improved; chronic bronchitis and interstitial emphysema, due to infection, not improved; and ulcer of the stomach, healed. The record noted that Kruhlinski had had a "chronic productive cough for many years" which had "been no worse" since the accident. There was noted "some slight evidence of atrophy in the left arm" and "weakness on the left side of the body in most muscle groups * * * not pronounced or marked." Kruhlinski was marked not fit for duty.

On February 27, 1957, Kruhlinski was examined at the Public Health Service Hospital, at which time it was noted that he was "generally doing well. Chest pain only occasionally * * * Primary complaint is of weakness and numbness in left hand." He was again marked not fit for duty.

Kruhlinski was successively marked not fit for duty on March 20, April 17, May 15, May 29, June 12, July 3, July 17, July 24, August 15, August 29, and October 26, 1957.

On October 19, 1957, Kruhlinski was re-admitted to the Public Health Service Hospital and remained until December 11, 1957, when he was marked permanently not fit for duty. He was admitted because of hemoptysis (expectoration of blood). The diagnoses showed chronic bronchitis and emphysema; hypertensive and arteriosclerotic heart disease; arteriosclerosis, generalized with intermittent claudication (lameness); and brachial plexus injury. A radiographic report dated October 22, 1957, reported "No evidence of recent or active pulmonary disease. No significant change from previous chest films dating back to 11/27/56." Dyspnea (shortness of breath) "for many years" was noted. The weakness of the left arm was, "by exclusion," attributed to arthritis.

An examination on May 11, 1962, by Dr. Joseph Fisher, a specialist in internal medicine, showed a hypertensive cardiovascular disease, bronchitis, emphysema, shortness of breath, a left inguinal hernia, and weakness of the left arm and hand.

On August 25, 1951, Kruhlinski had been admitted to the Public Health Service Hospital "complaining of weakness and weight loss." He had had a mild stroke the year before, and the hospital record indicates that "for about a year" he had "had a constant tingling of the fourth and fifth fingers bilaterally." The diagnoses upon discharge, on September 18, 1951, were cerebral arteriosclerosis; cerebral thrombosis due to arteriosclerosis; osteoarthritis; chronic bronchitis, and obstructive emphysema. He was marked "fit for light duty." The record upon this admission also noted a left inguinal hernia, and a "sense of numbness along ulnar part of hand."

Kruhlinski was admitted again to the Public Health Service Hospital on May 24, 1954, and January 13, 1956. The bronchitis, emphysema, and weakness of the left hand and side, among other things, were noted on each of these occasions. He was also admitted to the Lincoln Hospital in New York for two weeks in October 1954 for pharyngeal varices, following a coughing of blood.

Dr. Eglee was called as an expert by the defendant. He had not examined the plaintiff, but he had reviewed all of the hospital records pertaining to his various treatments. Dr. Eglee has had a distinguished career of almost forty years as a specialist in diseases of the chest. Dr. Fisher was called as an expert by the plaintiff. He had examined Kruhlinski only once, shortly before he testified. On the testimony of Dr. Eglee, whose opinion I accept in preference to that of Dr. Fisher, I find that Kruhlinski's fall on December 4, 1956, resulted only in multiple contusions of the chest; and that it neither caused nor aggravated his pre-existing bronchitis, emphysema, or cardiovascular disease. The stretching of the ulnar nerve I find to have been caused by osteoarthritis which was neither caused nor aggravated by the accident.

Kruhlinski contends he was caused to fall because the tug suddenly "backed away" or "pulled away" just as he started to jump up from the top of the stern quarter bit over to the car float. In support of this contention he said he heard the men on the tug shout to the master, who was then in the wheel-house, to stop the engines. This is rejected on the testimony of Stephens, the deck hand, which I accept. He said he shouted to the master, but only to warn him not to start the engines because there was a man overboard. He and Olsen, another deck hand, also said that when they looked over the side to locate Kruhlinski, they saw no "quick water," a condition which would have existed if the propeller was moving. These men helped Mullally, the master, to pull Kruhlinski from the water. They manifested no hostility to Kruhlinski. As far as appears, they had no motive to lie and it is not contended they did. I accept their testimony. The master also testified that the engines were not operating at the time. He, of course, had an interest to protect his professional reputation. I find, however, from my observation of him while on the stand that he did not let his interest color his...