Olszewski v. United Fruit Co.
| Decision Date | 15 August 1940 |
| Docket Number | No. 146.,146. |
| Citation | 34 F. Supp. 113 |
| Parties | OLSZEWSKI v. UNITED FRUIT CO. et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
Freedman & Goldstein, Abraham E. Freedman, and Milton M. Borowsky, all of Philadelphia, Pa., for plaintiff.
Shields, Clark, Brown & McCown and Samuel B. Fortenbaugh, Jr., all of Philadelphia, Pa., for defendant.
This is a motion for judgment for the defendant on the record under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in accordance with motion for directed verdict, the jury having disagreed and been discharged.
The action was one under Section 33 of the Merchant Marine Act of 1920, commonly known as the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, and was brought by Anthony Olszewski against the United Fruit Company and the United Fruit Steamship Corporation on account of personal injuries allegedly sustained by Olszewski while cleaning boilers aboard the steamship "San Bruno", which, according to the answer filed by the United Fruit Company, admittedly was owned and operated by it. Upon trial, at the conclusion of the plaintiff's evidence and again at the end of the trial, counsel for the defendant moved for a directed verdict. However, the case was allowed to go to the jury which failed to agree on a verdict and was discharged.
At the trial, the plaintiff testified that he and several others were employed by the National Boiler Cleaning Company to go aboard the "San Bruno", and to clean out the boilers in the fire room of the said vessel. He admitted that he was a seasoned seaman and very much experienced in boiler cleaning work. The contractor, the National Boiler Cleaning Company, supplied its employees with gloves, brushes, goggles and other necessary equipment. However, the iron rods and wooden planks, used in constructing a scaffold to reach the retarders in the boilers, were supplied by the shipowner. Apparently, this was due to the fact that the fire rooms of various ships differ in size and the iron rods necessary for the scaffold must fit precisely between the safety catches on the various boilers. Upon arriving on the ship, plaintiff and his fellow employees were informed that the necessary planks could be found in a shaft alley. Plaintiff states that there were two boards therein, one of which he helped to pull out. He testified: (Italics supplied)
Plaintiff said that he helped erect the scaffold in connection with which these boards were used. There were two boilers to be cleaned. While taking the retarders out of the first boiler, for over an hour, plaintiff admitted that the allegedly warped board did not wobble. Then the planks were shifted so as to be convenient to the other boiler. Plaintiff declared that he had removed nearly all of the retarders from the second boiler, standing on both planks with one foot on each, when, in order to gain access to those remaining, he placed both feet on the warped board and assumed a squat position. He testified that, thereupon, the board wobbled causing him to lose balance and to fall backwards against the hot retarders and thence to the floor-plates, as a result of which he sustained severe burns and wounds.
At a later stage of the trial, plaintiff denied that prior to the accident he knew the board would wobble. He stated also that the boilers still were very hot and that working conditions were difficult. Albert W. Walaconis, who testified on behalf of the defendant, stated that he had worked with the plaintiff and that he did not see him fall off any plank; further, that he had washed plaintiff's back after the job was finished and noticed nothing wrong. However, there was also testimony by Dr. David Gelfand who stated that he had examined plaintiff on the day of the alleged injury and had found him to be suffering from second degree burns of the left arm and shoulders and contusions and lacerations of the back. To the same effect was the abstract from the clinical record of the United States Public Health Service.
In ruling on the instant motion, the testimony must be considered in the light most advantageous to the plaintiff in order to determine...
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