Perry v. Morgan Guar. Trust Co. of New York

• Decision Date: 22 March 1976
• Docket Number: No. 74--3023,74--3023
• Parties: Darrel George PERRY, Plaintiff-Appellee, v. MORGAN GUARANTY TRUST COMPANY OF NEW YORK et al., Defendants, Hendy International Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1378

528 F.2d 1378

Darrel George PERRY, Plaintiff-Appellee, v. MORGAN GUARANTY TRUST COMPANY OF NEW YORK et al., Defendants, Hendy International Company, Defendant-Appellant.

No. 74--3023.

United States Court of Appeals, Fifth Circuit.

March 22, 1976.

Rehearing Denied May 20, 1976.

Fred E. Salley, Donald L. King, New Orleans, La., for defendant-appellant.

Dan C. Garner, Kenneth M. Henke, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

Darrel G. Perry, a seaman, sued the tanker owner, Hendy International Company (Hendy), for personal injuries sustained by slipping on grease left on stairs, charging both negligence and unseaworthiness. The jury found the ship to have been seaworthy but agreed that Hendy had been negligent. It awarded damages in the sum of $50,000. The shipowner appeals. There being no evidence to support the verdict, we reverse.

At the time of the accident, Perry was fifty-two years old, employed as a seaman-wiper aboard the S/S ALASKAN. In May of 1973 the vessel was taking on stores and cargo in Texas City, Texas. Perry and Joseph Cerniglia, another seaman, were assigned to carry five gallon buckets of grease from the main deck to a storage area below. Each man would carry a single 35--40 pound bucket down a twenty step interior metal stairway and thence to a storage compartment. The stairs were well lighted, in new condition, and seldom used.

At 4 o'clock, P.M. the men knocked off for the evening meal. Perry testified that there was no grease on the steps when he went to supper.

After supper, the men resumed their work. Upon his return Perry saw no grease on the stairs (App. 254, 277). When Cerniglia made his first trip down after supper he saw nothing on the stair steps (App. 213--215). Nevertheless, on his first trip, carrying a bucket of grease, Perry slipped and fell to the bottom of the stairway, suffering a knee injury and a hernia. In the fall, Perry's grease bucket, burst, splattering grease over the lower half of the stairway.

Cerniglia was standing just outside the door or hatch at the top of the stairs and did not witness the fall, but upon hearing the clatter he peered in and saw Perry at the bottom of the stairway, rubbing his leg. He helped Perry back up to the main deck and returned to clean up the grease. He testified that he saw oil in the center of the middle three steps (App. 217--218), but that he did not notice any slip marks in it (App. 220). He stated that the grease he saw was above the heavy deposit on the steps where the bucket burst. (App. 207--208). Perry testified that he did not know what had caused him to slip until he came back up and saw 'gray-looking grease' (App. 265) on the fifth or sixth step, with his footprint in it (App. 271). Perry says that in allowing such a dangerous condition to exist Hendy breached its duty of due care.

Under familiar principles of negligence, in Jones Act cases, there must be some evidence from which a jury can infer that the unsafe condition existed and that the owner either knew or, in the exercise of due care, should have known of it. Neither Perry nor Cerniglia saw grease on the stairs before they went to supper. They saw none when they returned. Yet, Perry testified that he slipped on such grease on his first trip downstairs. Assuming that he did, there is absolutely no evidence to show how the grease got there, how long it had been there, or that there had been time enough for the...