Pittsburgh SS Co. v. Palo

• Decision Date: 13 March 1933
• Docket Number: No. 6115.,6115.
• Citation: 64 F.2d 198
• Parties: PITTSBURGH S. S. CO. v. PALO.
• Court: U.S. Court of Appeals — Sixth Circuit

64 F.2d 198 (1933)

PITTSBURGH S. S. CO. v. PALO.

No. 6115.

Circuit Court of Appeals, Sixth Circuit.

March 13, 1933.

Carl A. Schipfer, of Cleveland, Ohio (Blake Womer, McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, on the brief), for appellant.

M. C. Harrison, of Cleveland, Ohio, for appellee.

Before MOORMAN, HICKENLOOPER and SIMONS, Circuit Judges.

HICKENLOOPER, Circuit Judge.

This was an action under the Jones Act, § 33 (46 USCA § 688), to recover for alleged negligent injury to Eugene J. Palo, the appellee, while he was employed as a seaman in the service of appellant aboard the bulk freighter Zenith City. Palo alleged two injuries, respectively on or about June 26, 1930, and July 30, 1930. Just how the first alleged accident happened does not very clearly appear. Palo testified that he was told to go below to the boiler room and there hook the "pelican hooks" to the rudder chains of the emergency or hand steering gear. These rudder chains ran in wooden troughs supported by hanging iron brackets. The pelican hooks were merely large hooks attached to the end of a chain, weighing about twenty-five pounds each, and having a hinged jaw which could be opened and closed, and, when closed, could be locked with a cotter pin. The function of the pelican hook chains is immaterial.

Although it seems to be conceded by counsel that the general instructions were to use a ladder while doing this work, plaintiff testified that he had seen another seaman do it while standing upon the "smoke breeching" and leaning over with his chest against the hanging trough. On the occasion of his alleged injury he testified he had adopted the latter method. He first attached the pelican hook on the starboard side. There he had no difficulty. "The wheel hadn't vibrated the chain back and forth, so that on the starboard side my arm wasn't caught between the shackle and the overhead brace. If it had, I would have been caught on that side, too." The shackle (to which the pelican hook was to be attached) was described as "at least two or three inches above that chain trough."

When he came to the port side, plaintiff had his arm over the top of the trough "holding the shackle," and kept it "traveling on top of the shackle, so as to hold the shackle in place." This was within a few inches of the bracket. On direct examination he says: "I had a chance to get the pelican hook; just when I had a chance, getting the chance to put the pelican hook in the shaft bolt shackle(?) the chain lunged forward and caught my arm in between the bracket, the trough." On cross-examination he said that his arm was "pinched between the bracket and the trough"; and there was testimony that the trough was old and worn, that the hole through which the bolt ran, which attached the trough to the bracket, was enlarged, and that the trough could be moved laterally about an inch and a half within the bracket. No report was ever made of this accident by plaintiff to his superiors, and the evidence is extremely difficult to reconcile or understand, except upon the hypothesis that the plaintiff's arm was caught and pinched between the shackle and the hanging bracket.

On the occasion of his second alleged injury plaintiff testifies that he was again ordered to attach the pelican hooks, and that, this time, he used a ladder provided for the purpose; that again he first attached the hook on the starboard side; and that on that side "the ladder was all right." He then took the ladder to the port side and he "couldn't get it to stand level on account of the plates upon which it rested overlapping." He had started to climb up it when it "slipped to the right, throwed me off my balance. I had to catch myself with my left arm the one alleged to have been previously injured. I hung suspended for about five seconds, looked down where I could land, and let myself fall to the top of the boiler, and my arm started to swell up right away." The ladder did not fall, but after the event the plaintiff testifies he found "the rungs were all loose, you could shake it, sort of see-saw." After the accident, plaintiff placed the ladder more securely and finished affixing the pelican hooks.

Here again it is difficult to reconcile the conflicting evidence or to see why, if the condition of the ladder was as plaintiff described it, this condition was not observed when the ladder was used on the starboard side, or why, if there was vertical play in the uprights, any difficulty was experienced from the different levels of the plates upon which it rested. In no single respect was the testimony of plaintiff corroborated by the officers or other members of the crew.

It is urged by appellant that the District Court erred in its refusal to direct a verdict, with respect to both the causes of action, upon the ground that the risk was assumed. The charge upon this subject, as given, was quite as favorable to the defendant as could reasonably have been asked, and we are of the opinion that the defendant was not entitled to a peremptory instruction on this ground. The language of the Jones Act is, that "in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply," and while there are some decisions which seem to hold that by reason of its enactment the entire common law of master and servant, as enforced on land, was incorporated by reference into the maritime law, we are of the opinion that this is not the better view. As was said of the section (38 Stat. 1185, § 20), of which the present act is an amendment, the language used does not disclose a purpose upon the part of Congress to impose upon shipowners "the same measure of liability for injuries suffered by the crew while at sea as the common law prescribes for employers in respect of their employees on shore." Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 384, 38 S. Ct. 501, 504, 62 L. Ed. 1171. It is only in respect of the "right or remedy" of the seaman, and not in respect of the defenses which theretofore might have been asserted at common law though not in admiralty, that new rules have been brought into the maritime law by the enactment.

Doubtless a seaman still assumes the ordinary risks of his employment (The Iroquois, 194 U. S. 240, 243, 24 S. Ct. 640, 48 L. Ed. 955), but we do not think that he assumes the risk of injury even from obvious dangers if they arise from "a failure to supply and keep in order the proper appliances appurtenant to the ship." The Osceola, 189 U. S. 158, 175, 23 S. Ct. 483, 487, 47 L. Ed. 760. This is a duty which has been held positive and nondelegable. Thompson Towing & Wrecking Ass'n v. McGregor, 207 F. 209 (C. C. A. 6). Extraordinary risks arising from its breach are not assumed, even if the danger is at the time obvious to the seaman. Howarth...