Marceau v. Great Lakes Transit Corporation, 151.

• Decision Date: 09 January 1945
• Docket Number: No. 151.,151.
• Parties: MARCEAU v. GREAT LAKES TRANSIT CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 416 (1945)

MARCEAU v. GREAT LAKES TRANSIT CORPORATION.

No. 151.

Circuit Court of Appeals, Second Circuit.

January 9, 1945.

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

Ulysses S. Thomas, of Buffalo, N. Y., and Russell V. Bleecker, of Cleveland, Ohio (Russell V. Bleecker, of Cleveland, Ohio, of counsel), for appellant Great Lakes Transit Corporation.

Desmond & Drury, of Buffalo, N. Y. (John E. Drury, Jr., of Buffalo, N. Y., of counsel), for appellee Alfred G. Marceau.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff, a second cook and member of the crew on the Steamer Alfred E. Smith, belonging to the defendant, Great Lakes Transit Corporation, brought this action under the Jones Act to recover for personal injuries suffered in the course of his employment because of the alleged negligence of the defendant.

The vessel was moored at a dock in Buffalo Harbor which had been leased to the defendant. The plaintiff left the vessel on shore leave on November 8, 1940, at about 7:30 or 8 P. M. in order to go ashore for personal business or recreation. He had been ordered to return at 11:30 to provide the night lunch. On his return he walked up the dock toward the boat and approached a ladder belonging to the ship which ran from the dock to the deck and was a recognized mode of ingress to and egress from the vessel for the crew. When within about three to five feet from the foot of the ladder, he slipped and fell, straddling the upright of the ladder, which caught him in the crotch. In the fall he landed on the small of his back upon a cleat extending out on the dock and sustained the direct and consequential injuries for which he sues. He testified that a pile of flour or meal had been deposited near the foot of the ladder, had become wet from the rain or snow that was falling and had then been sprinkled with sawdust by someone so that it should not be slippery. He also testified that when he returned there were no lamps lighted in the area of the ladder.

Stevedores had been loading a cargo of flour on the ship earlier in the day, and when the plaintiff returned just before midnight they were loading it through bow or No. 1 gangway, which was some 150 feet from the spot where the ladder rested and the pile of flour was found. Some of the other gangways had been used to load cargo during earlier hours and the boat had been shifted since the plaintiff went ashore. He said that it was the practice to sweep any flour or debris which had accumulated through the gangway and upon the dock. In this way the presence of the slippery pile of debris near the foot of the ladder might be accounted for, though no witness testified to seeing when or by whom it was placed there and it was not opposite the entrance of any gangway at the time the plaintiff returned to the vessel; for, if the plaintiff's evidence be believed, the jury could reasonably find that the debris had been swept on the dock through a gangway which earlier in the day was opposite the place where the ladder stood and where the plaintiff slipped and fell, but later, owing to the moving of the boat, was opposite a different part of the dock. This was the effect of Marceau's testimony, for when asked to explain the presence of the debris at the foot of the ladder, which at the time he approached it was not near any gangway but half-way between the third and fourth gangways, he said: "Well, * * * when they are loading, they often-times shift the boat, which in this occasion * * * had been shifted. The boat was not in the same condition when I came back as it was when I left."

The court submitted to the jury two questions, whether the defendant was negligent (1) in causing or permitting the condition at the foot of the ladder to exist, and (2) in failing to provide proper lights so that the plaintiff could proceed safely when about to ascend the ladder.

The defendant argues that the court was without jurisdiction of the suit because: (1) The plaintiff had sought and received a compensation award from the Industrial Board of the State of New York; (2) the plaintiff was not injured while in the course of his employment; (3) The Jones Act did not extend to accidents which did not happen on navigable waters but on land, that is, on the dock.

The first contention cannot be sustained. The award for workmen's compensation is on appeal and it does not appear that any payments on account of it were made. If the action under the Jones Act is one of which the District Court acquired jurisdiction, as we hold to have been the case, there is no basis for invoking any doctrine of election of remedies, and nothing has occurred in the way of an accord or satisfaction. Brassel v. Electric Welding Co., 239 N.Y. 78, 145 N.E. 745; Doey v. Clarence Howland Co., 224 N.Y. 30, 120 N.E. 53.

The defendant's other two contentions are likewise without merit. The plaintiff was acting under orders when he returned to the ship. Consequently at the time of the accident he was not only acting in the course of his employment but suffered his injuries while on property in the possession and under the control of the defendant as lessee and over which the plaintiff had to pass in order to return to his work. Under the decisions a man is acting in the course of his employment when coming to or returning from work, and upon the employer's premises or upon adjacent property if approaching by a customary route. Wong Bar v. Suburban Petroleum Transport, 2 Cir., 119 F.2d 745. In Erie R. R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, Ann.Cas.1918B, 662, the Supreme Court held that a railroad employee was engaged in interstate commerce and could recover for injuries sustained through the negligence of the railroad when incurred while leaving his work for the day and passing through the freight yard of the railroad. See to the same effect; Virginian Ry. Co. v. Early, 4 Cir., 130 F.2d 548; Young v. New York N. H. & H. R....