Lillig v. Union Sulphur Co.
| Decision Date | 11 January 1937 |
| Docket Number | No. 8254.,8254. |
| Citation | 87 F.2d 277 |
| Parties | LILLIG v. UNION SULPHUR CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William P. Lord and T. Walter Gillard, both of Portland, Or., for appellant.
Erskine Wood, of Portland, Or., for appellee.
Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.
The appellant, Robert Lillig, was injured by falling from or with a ladder while engaged in painting a fire-room ventilator on the deck of the steamship Henry D. Whiton, owned by appellee. Lillig signed aboard the Henry D. Whiton at Portland, Or., his home, for its voyage from that city to New York. While there was some conflict as to whether or not he signed on as an able-bodied seaman, he was not possessed of papers certifying him as such, and he failed to pass the examination for such ranking just prior to sailing. However, he was not wholly inexperienced, for he had been going to sea for several years.
The accident occurred on or about November 27, 1934, while the vessel was on the Pacific Ocean, a few days south of San Pedro, Cal., and north of the Panama Canal. A fracture of the right kneecap necessitated hospitalization of the appellant at Ancon, Canal Zone, where he remained until picked up by the vessel on its return trip to Portland, and was brought home as a workaway.
There was conflict between the appellant's witnesses as to what actually happened at the time of the accident, how it was brought about and what, if any, safety precautions had been taken. At the trial the court permitted appellant's counsel to amend the libel to conform to the proof, after objection by appellee's counsel. The only evidence introduced by appellee was the deposition of Theodore Wiberg, first mate of the Henry D. Whiton, who, in the amendment to the libel, was charged by appellant with responsibility for the accident. The court found the testimony of the libelant and his witness, Tully, to be unreliable and believed the testimony of Wiberg, the first mate, witness for respondent. The court further found "That the libelant, a seaman on the `Henry D. Whiton' belonging to respondent, was engaged in painting the starboard ventilator on or about November 27, 1934, in a smooth sea and suitable weather, and under circumstances in all respects suitable for doing that kind of a job; that he placed a wooden ladder against the ventilator, but failed to secure it, lash it, or brace it, or take other means to prevent its slipping and falling, all of which means were at his disposal, and either the ladder slipped and he fell with it, or he fell from the ladder, and suffered certain injuries which were not, however, of a very serious nature, but they were not attributable in any way to negligence on the part of respondent." Decree was entered accordingly, from which libelant appealed.
The findings of the court were made on conflicting evidence. In the first place the testimony given by the libelant did not conform to the allegations of the libel filed, and the court permitted libelant to amend the libel in open court to conform to the evidence offered. Secondly, the witness Tully did not agree with appellant Lillig on certain points, especially as to whether or not the ladder was in place when Lillig came on deck or whether Lillig placed the ladder...
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...is in keeping with the rules of the federal courts in admiralty cases, as will be found expressed in the case of Lillig v. Union Sulphur Company, 9 Cir., 87 F.2d 277, 278: 'Although an appeal in an admiralty case is regarded as a trial de novo, the findings of the trial court would not be d......
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