Mullen v. Fitz Simons & Connell Dredge & Dock Co.
| Decision Date | 26 November 1951 |
| Docket Number | No. 10322.,10322. |
| Citation | 191 F.2d 82 |
| Parties | MULLEN v. FITZ SIMONS & CONNELL DREDGE & DOCK CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Irving Breakstone, Chicago, Ill., for appellant.
Edward B. Hayes, Chicago, Ill., for appellee.
Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.
Writ of Certiorari Denied November 26, 1951. See 72 S.Ct. 173.
On October 10, 1947, plaintiff, a seaman on the Great Lakes, filed his complaint under the Jones Act, 46 U.S.C.A. § 688, for personal injuries sustained by him on September 29, 1947, while working as a deckhand on the tug boat Roche, of which defendant was the owner. It contained three counts. Count one charged defendant's negligence and the unseaworthiness of the tug caused plaintiff's injuries; counts two and three asked for cure and maintenance, respectively. At the outset of the trial, plaintiff elected to proceed on the charge of negligence alleged under the Jones Act. On that count the case was tried by a jury.
At the close of plaintiff's case, defendant moved for a dismissal on all counts, upon which motion the court reserved its ruling. At the close of all the evidence the defendant, by oral motion, moved for a directed verdict, upon which motion the court also reserved its ruling. The case was then submitted to the jury, which returned a verdict of $4,500 in favor of the plaintiff.
On April 7, 1950, the day following the return of the verdict, the court set the reserved motions for argument on April 26, 1950, and after hearing arguments thereon, sustained the motions and entered a judgment for defendant. This appeal followed.
In his brief plaintiff says: "The errors relied on arise out of the judgment of the court dismissing the plaintiff-appellant's case on the merits and sustaining the defendant's motion for a directed verdict, and in failing to find that plaintiff's case was made out by substantial evidence sufficient to sustain the material controverted issues in favor of the plaintiff."
In support of its motion for a directed verdict, defendant contends in part: (1) there is no proof of any negligence on its part which was the cause of plaintiff's injury; (2) there was no evidence that the equipment and appliances aboard the tug were defective in any particular; (3) plaintiff himself was guilty of the negligence which was the sole proximate cause of his injury; and (4) plaintiff's injury was caused solely by his failure to perform his own duties as a deckhand, without negligence on the part of defendant.
The contentions presented require a brief statement of the evidence.
Plaintiff is an able-bodied seaman with thirty-three years experience on the Great Lakes. On September 22, 1947, he was employed as an extra by defendant, working as a deckhand on the tug boat John J. Roche, which was engaged in towing loaded scows from Indiana Harbor into Lake Michigan for dumping. The tug was about 84 feet long overall, 20 feet wide, 12½ feet in depth, of which 14 inches was above the water line. Above the deck's level was a deck house and forward, a pilot house. The deck house had several doors which, when closed, kept out the lake water. Among his duties, the deckhand was supposed to close these doors in rough weather. In the middle of the deck house, on the starboard side, was a fire hole door, in addition to the door to the pilot house. Next, astern to the fire hole door, was an engine room door, and farthest back, at the end of the deck house, was a galley door. Inside this door, steps led down to the galley below the deck, a hand rail was provided for use on these steps. The galley door was about three feet wide and five feet high. It was made of steel and swung outward, with hinges on the side toward the front of the tug. A hook attached to the deck house wall could be hooked over the top of this door to keep it open.
A captain, engineer, two firemen, and deckhand, as required by the steamboat inspectors, made up the crew. Plaintiff was the deckhand. The boat was regularly inspected by the United States Steamboat Inspectors, as required by law.
Handling mooring lines, helping the fireman in dumping ashes from the boiler room, and closing hatches, when necessary to keep the tug from taking water in rough weather, were among the duties of the plaintiff as deckhand.
The tug was docked in Indiana Harbor, an artificial harbor, formed by breakwaters facing the lake with a gap, through which vessels pass, near the center of the Harbor. At the gap of this inner breakwater, a green light is fixed. A second breakwater projects directly into the lake proper at the end of which is fixed a white light. Going toward the lake, after passing the gap in the inner breakwater, marked with the green light, a ship is in the lake proper. Passing beyond the breakwater with the white light, puts the vessel farther out into the lake.
After arriving for work at the Indiana Harbor dock on the morning of September 29, 1947, plaintiff saw that the lake was heavy and rough. From the dock, plaintiff could see the water spray striking the top of the catwalk astride the breakwater enclosing the harbor. Within the harbor the water was choppy. The number of scows that can be towed on a given day depends on the weather. The condition of the weather can best be determined from an examination out in the lake itself. This is called "going out to look at the weather." Plaintiff had gone out to look at the weather on tug boats many times before.
A civil engineer employed by defendant, and a scowman, who rode loaded scows, accompanied the crew of the Roche when the captain gave the order to go out and look at the weather. When the whistle signal was given, plaintiff cast off his mooring lines, one of the firemen cast off the other line, and the tug proceeded toward the breakwater gap which afforded access to the lake. A standing order aboard the Roche required the deckhand to close up the tug in heavy weather. Plaintiff was told about the standing order, and also testified it was his job as deckhand to do that. He further testified that the tug should have been closed up in weather such as he could see from the dock before he started out into the lake. The captain testified that he told plaintiff personally that standing orders required him to close up in heavy weather. There was no contradiction to the testimony given by the captain as to the standing order.
After passing the gap in the breakwater, the Roche entered the lake and ran into a heavy sea, which impeded its speed. The decks of the Roche were awash from waves of water. At times, the waves hit the breakwater causing a spray of water forty to fifty feet high. Plaintiff could see that the tug was going beyond the end of the breakwater projecting into the lake. As the tug proceeded, plaintiff said he was dumping ashes into the lake and when it became too rough to remain on deck he headed inside by way of the galley door, that being then the last door astern on the starboard side. A wave of water followed him in as he stood on the first or second step leading downward to the galley, with his hand...
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...note 5. The Third Circuit in Jordine v. Walling, 3 Cir., 185 F.2d 662, followed5 by the Seventh Circuit in Mullen v. Fitz Simons & Connell Dredge & Dock Co., 7 Cir., 191 F.2d 82, denied the applicability of the pendent jurisdiction theory because it regarded the maintenance and cure count a......
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