Neal v. Lykes Bros. Steamship Company, 19413.
| Decision Date | 17 September 1962 |
| Docket Number | No. 19413.,19413. |
| Citation | 306 F.2d 313 |
| Parties | Paul R. NEAL, Appellant, v. LYKES BROS. STEAMSHIP COMPANY, Inc., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. Jiles Roberts, Houston, Tex., for appellant.
Mayo J. Thompson, Houston, Tex., Royston, Rayzor & Cook, Mayo J. Thompson, Gus A. Schill, Jr., Houston, Tex., of counsel, for appellee.
Before HUTCHESON, RIVES and BELL, Circuit Judges.
This is an appeal by the plaintiff from a verdict and judgment against him in a suit for damages for personal injuries.
The complaint filed by the appellant contained allegations predicating liability on the negligence of the shipowner and the unseaworthiness of the S. S. Virginia Lykes, or both. These allegations were denied in the answer filed by the appellee. Additionally, affirmative defenses of contributory negligence of the appellant, negligence of his fellow workers, negligence of the appellant's employer and unavoidable accident were pleaded.
Prior to the presentation of evidence, the attorney for the appellant, stating in open court that the ground of negligence for imposing liability was waived and abandoned, and that the appellant's cause of action would rest solely on the alleged unseaworthiness of the S. S. Virginia Lykes, moved the court to strike out the negligence defenses. The record, however, does not show what action was taken on these motions.
The plaintiff, a longshoreman, was injured on March 7, 1957, while in the employ of Southern Stevedoring Co., an independent stevedoring contractor, which was working on board the Steamship Virginia Lykes, discharging a cargo of steel. At the time of the injury, the longshoremen were discharging this cargo from the No. 3 hold.
Just prior to appellant's being injured, a load of steel had been lifted from the hold by utilizing the winches at the No. 3 hatch. The cargo was being discharged into open gondola railroad cars. However, at the critical time in question, as no car was positioned to receive the cargo, one end of the load was lowered or rested on the inshore rail of the vessel adjacent to the No. 3 hatch. It remained in this position during the wait for another railroad car to be moved into position.
When a railroad car was moved into position, an attempt was made, utilizing the winches, to raise the load preparatory to transferring it into the waiting railroad car. However, the end of the load which was on the inshore rail of the vessel somehow had become entangled on a cleat on the rail. Without instructions from anyone, and more particularly without instructions from the foreman of the longshore gang, the appellant, one of the two winch operators, left his position at the after end of the No. 3 hatch and walked to the load on the rail. He attempted to free it by shaking the load with his hands. As this event was taking place, the gang foreman, S. T. Burroughs, ordered the appellant to move away from the load. While the appellant was walking in a normal manner to a place of safety, Burroughs without any further warning or indication of his intentions, having moved to a position between the two winches, operated either one or both of them. When he did this, the load came loose from the cleat on the rail, swung to the offshore side (toward the hatch) and struck the appellant, and he was pinned between the swinging load and hatch pontoons which were stowed on the inshore side of the hatch and parallel to the coaming. There was evidence in the record showing that this was a customary place to stow hatch pontoons.
Following the completion of the evidence in the case, special issues (interrogatories) were submitted to the jury, along with definitions and instructions.1
After due deliberation, the jury brought in its verdict by answering the special issues submitted by the Court.2 The trial judge entered judgment on the verdict that plaintiff take nothing, and this appeal followed.
Appellant is here presenting claims of error with respect to the charge and issues submitted and refused by the trial court. No substantial claim is made or could be made that the verdict was not in accord with the evidence. Indeed, while there was considerable evidence on the crucial issues, it was all one way, and examination of the specifications in the light of the record as a whole leaves us with the firm conviction that none of the specifications present reversible error.
Appellee, on its part, insists that if any error was committed by the trial court, it was the error of submitting any issues, instructions, or definitions on the question of unseaworthiness, and further contends that if there was any formal error in submitting any of the issues of which appellant complains, it was not substantial or prejudicial error, because the evidence established, as matter of law, that the vessel was not unseaworthy, and this both required the court to instruct a verdict as requested and constituted a complete bar to a verdict for plaintiff.
As appellant argues his case, it is generally centered on these two complaints: First, that the court erred in submitting to the jury interrogatories as to whether there was negligence of longshoremen, servants of appellant's employer; Second, that the issue of unavoidable accident should not have been submitted.
As appellee well states in its brief, there can, of course, be no dispute that a shipowner is not liable for the negligence of longshoremen acting as servants or employees of an independent stevedoring contractor, unless such negligence creates an unseaworthy condition. Appellee was entitled to affirmatively plead, prove, and thereafter have special issues submitted concerning this defense of the negligence of the winch operator as a means of determining the true proximate cause of the accident. Interrogatories to the jury as to whether appellant's injury resulted from his own negligence or the negligence of his...
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...362 F.2d 164 (5th Cir. 1966); McQuiston v. Freighters and Tankers Steamship Co., 327 F.2d 746 (5th Cir. 1964); Neal v. Lykes Bros. Steamship Co., 306 F.2d 313 (5th Cir. 1962); cf. Morales v. City of Galveston, 275 F.2d 191 (5th Cir.); vacated and remanded, 364 U.S. 295, 81 S.Ct. 107, 5 L.Ed......
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Hammon v. Texas & N. O. R. Co., 52
...to prove any act of primary negligence, the submission of other issues would be harmless. Rule 434, T. R. C. P.; Neal v. Lykes Bros. Steamship Co., 5 Cir., 306 F.2d 313. Quinterno v. Sinclair Refining Co., 5 Cir., 311 F.2d 217; Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, Point nin......
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