Nunes v. Farrell Lines
| Decision Date | 01 December 1955 |
| Docket Number | No. 4998.,4998. |
| Citation | 227 F.2d 619 |
| Parties | Joseph E. NUNES, Plaintiff, Appellant, v. FARRELL LINES, Incorporated, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Hyman Katz, Boston, Mass., for appellant. Thomas H. Walsh, Boston, Mass., with whom Leo F. Glynn, Boston, Mass., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This is an appeal by the plaintiff from a judgment entered by the United States District Court for the District of Massachusetts on March 10, 1955, 129 F.Supp. 147, based on defendant's motion for a directed verdict of the jury on counts one and two made at the close of the evidence offered by the plaintiff and on the disallowance of plaintiff's claim for maintenance under count three, the jury having been waived on count three.
The first count of the complaint is brought under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688. The second count is brought under the general maritime law relating to compensation to a seaman for injuries resulting from the unseaworthiness of the vessel. The third count is for maintenance and cure.
Among the alleged acts of negligence on the part of the defendant in the first count are: (1) failure to provide and maintain a reasonably safe place in which to work, (2) failure to provide and maintain adequate and proper working tools for the plaintiff to work with and (3) failure to provide the plaintiff with an adequate number of fellow employees to assist the plaintiff in the course of his duties.
In the second count the plaintiff alleges his injuries were due to and resulted from the unseaworthy condition of the "African Endeavor" in the following respects among others: (1) lack of a reasonably safe place in which to work, (2) lack of adequate and proper working tools for the plaintiff to work with and (3) lack of an adequate number of employees to assist the plaintiff in the course of his duties.
The plaintiff, Joseph E. Nunes, an engine maintenance man on the defendant's vessel, "African Endeavor", testified that when that vessel was in the harbor of Durban, South Africa, on October 5, 1951, he was injured under the following circumstances. Upon reporting for duty on the morning of October 5, 1951, he received orders from the engineer, who was his superior, to remove a valve located beneath the floor of the fire room. This floor consisted of removable rectangular steel plates, some of which were held in position by screws and others merely resting in position, readily removable by means of a handle. The latter plates were called "manholes".
About 2½ or 3 feet below the fire room floor were located the bilges, covered with water and oil and slippery under foot. Between the bilges and the floor above were located various pipes, upon one of which was mounted the valve which the plaintiff was directed to remove.
The plaintiff inspected the valve and found it to be corroded and rusted on one side. He reported this fact to the engineer who sent down a cadet to help with the job. The plaintiff and the cadet attempted to remove the plate immediately over the valve but the screws were found to be frozen. Plaintiff was then directed to get the "manhole" off and to commence working on the valve from underneath the fireroom floor. He did so, but found some of the nuts so rusted that the wrenches were inadequate to remove them. He then proceeded to work with hammer and chisel in an effort to cut off the rusted nuts. At this juncture the cadet was taken off the job by the engineer, ostensibly only for the time being, but in point of fact he never did return. At some stage of the work before the cadet was taken away — it is not clear precisely when — plaintiff had attempted to find a "burner" to cut off the rusty nuts. This man could not be found and plaintiff was ordered to go ahead and get the job done.
After the cadet left, plaintiff succeeded in cutting off the two remaining bolts, but the valve remained frozen. The engineer told him to try wedges, but they were in a rough unworkable condition. When he reported this, plaintiff was instructed to grind the wedges down. He did so, but they proved too soft and would not do the job. Plaintiff was then told by the engineer to use a valve spreader, but it proved to be too large and no valve spreader of the proper size was available. Plaintiff was then directed to try chisels. He asked for the cadet and was told that the cadet was busy elsewhere but would be down later.
The chisels didn't help. By this time the engineer "was excited". Plaintiff got a heavier hammer and began tapping the valve. He was leaning over a small 2-inch pipe on his stomach and one leg was straddling another pipe. The toe of his left foot was on the tank top. With his free left hand plaintiff attempted to hold the valve in order to protect certain small pipes below. Plaintiff testified: against an angle iron that supported the deck plates.
In attempting to decide whether there was introduced sufficient evidence of causal negligence under count one, and unseaworthiness under count two, this court must be "* * * concerned solely with whether the testimony on behalf of the plaintiff, and reasonable inference to be drawn from it in the light most favorable to the plaintiff, made out a prima facie case allowing the plaintiff to have a jury pass upon his cause of action." Gold v. Groves, 3 Cir., 1950, 182 F.2d 767, 769, 770.
Putting to one side, for the moment, a consideration of the legal effect of the testimony relating to the plaintiff's failure to use the wooden block which was available, we believe that there was sufficient evidence to take this case to the jury on counts one and two.
We find support for our view that there was sufficient evidence of negligence to go to the jury on count one in a strikingly similar case, Jacob v. City of New York, 1942, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166. In that case, likewise brought under the Jones Act, the petitioner was serving as water-tender in charge of the fireroom on respondent's ferryboat operating between Staten and Manhattan Islands. In the course of his duties he was required to change oil strainers about three times weekly. This task involved loosening and tightening six nuts which held the entire assembly in position. Petitioner customarily used an S-shaped end wrench of the proper size which had seen a lot of service and had a lot of play in it. On three separate occasions petitioner asked the chief engineer for a new wrench, the last of these requests being only a few days before the accident. In reply the chief engineer told him to "* * * look in the tool closet and see if there was one in there * * *" but the petitioner's search was unsuccessful. On the day of the accident, petitioner found no end wrench of proper size, did not know if a Stillson wrench was available, but believed that a monkey wrench was. When he got hurt, petitioner was using the worn, S-shaped end wrench to tighten the nuts after changing the oil strainer. As he began to tighten the fifth nut, the wrench slipped causing him to fall eighteen inches to a catwalk below, and in the course of his fall he struck and injured his side against an adjacent angle iron.
The court said, 315 U.S. at pages 755, 756, 62 S.Ct. at page 855:
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