Maibrunn v. Hamburg-American SS Co., 348.

• Decision Date: 06 May 1935
• Docket Number: No. 348.,348.
• Citation: 77 F.2d 304
• Parties: MAIBRUNN v. HAMBURG-AMERICAN S. S. CO.
• Court: U.S. Court of Appeals — Second Circuit

77 F.2d 304 (1935)

MAIBRUNN v. HAMBURG-AMERICAN S. S. CO.

No. 348.

Circuit Court of Appeals, Second Circuit.

May 6, 1935.

David M. Neuberger, of New York City (Silas B. Axtell, Adele I. Springer, and Murray Ratner, all of New York City, of counsel), for appellant.

Alfred W. Andrews, of New York City (Theodore H. Lord, of Brooklyn, N. Y., of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment entered upon a directed verdict dismissing his complaint at the close of the evidence in an action to recover for personal injuries, suffered while a passenger on the defendant's steamer Hamburg, bound from New York to Hamburg, Germany. Shortly after 9 o'clock on the morning of March 2d, some four or five days out from New York, the plaintiff was standing at the forward end of the promenade deck, on the starboard corner, looking out on the sea through a glass window which gave forward. A weather shield with glass windows, which ran thwartship across the forward end and aft on each side for a certain distance, inclosed the deck, and the deck itself extended two feet outboard of the skin of the ship on each side and was about thirty-five feet above the water line. The weather had been somewhat rough for a little over twelve hours, the log entries being as follows: March 1, four p. m. "Wind and seas increasingly heavy, ship pitches heavily in irregular swelling" (sic). Between nine and midnight: "Rough seas and swelling. Ship pitches and rolls. Shipped water over deck and hatches. Beginning at 11 o'clock storm oil is used on starboard." Just before the accident the storm had become perceptibly severer: "Wave oil and storm oil in use. Rough seas and swelling. Ship pitches very heavily and ships many breakers over deck and hatches." The ship was going at about twelve to fifteen knots an hour against a fresh gale of about forty miles (Beaufort 8), taking the seas about four points on her starboard bow. She shipped a heavy one which struck the window, broke the glass, and dashed it upon the plaintiff, severely injuring him. The question is whether the carrier had failed in its duty to protect him; and his theory is that the front of the deck should have been roped off, and that there should have been no glass window at the forward corner of the shield.

The plaintiff either proved, or was prevented by the judge from proving, that it was the usual practice in steamers of the kind not to have glass windows at the very corners, and that this was especially true when the deck had an overhang. His experts also said, or again were prevented from saying, that in weather such as then prevailed the starboard corner of the deck should have been roped off. The steamer's witnesses, although admitting that the window had been broken before in a hurricane, declared that there was then no danger; that nothing of the kind had ever taken place before; that such a sea was not to be expected, and was a chance against which a carrier ought not to be required to fend. The judge took this view and dismissed the complaint.

On the whole we think that the dispute was one which only a jury could decide, little as it was qualified to pass on such questions. We are to remember that as passenger, the plaintiff was entitled to much more than the ordinary measure of care; the precise formula in which that measure has from time to time been cast is not important; it is enough that it is very high indeed. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141. If it be true that it had become the customary construction for North Atlantic steamers not to have glass at the corners, the jury might find that glass was improper construction, at least...