Rey v. Colonial Nav. Co.

• Decision Date: 06 January 1941
• Docket Number: No. 50.,50.
• Citation: 116 F.2d 580
• Parties: REY v. COLONIAL NAV. CO.
• Court: U.S. Court of Appeals — Second Circuit

116 F.2d 580 (1941)

REY v. COLONIAL NAV. CO.

No. 50.

Circuit Court of Appeals, Second Circuit.

January 6, 1941.

Gazan & Caldwell, of New York City, for appellant.

Hatch & Wolfe, of New York City (Carver W. Wolfe and Eli Ellis, both of New York City, of counsel), for appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

This is an action by a fireman employed on the defendant's steamship Comet from March 21, 1937 to March 5, 1938. The vessel plied between New York and Providence, Rhode Island. The complaint alleges that by reason of the defendant's negligent failure to provide suitable sleeping quarters for the crew the plaintiff contracted pulmonary tuberculosis which still impairs his health and his earning capacity. The first count is based on the Jones Act, 46 U.S.C.A. § 688; the second on the general maritime law relating to maintenance and cure. During the trial the complaint was amended to charge that the defendant operated its vessel in violation of 46 U.S. C.A. § 80. This statute applies only to vessels constructed subsequent to its enactment, The San Juan, 2 Cir., 250 F. 93; as there was no proof regarding the age of the Comet, the amendment may be disregarded. At the close of the plaintiff's evidence, the trial judge dismissed both counts of the complaint for failure of proof.

It is well settled that under the Jones Act the negligent failure of a shipowner to furnish a seaman safe appliances and a safe place in which to work is actionable. Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082; Howarth v. U. S. S. B. E. F. Corp., 2 Cir., 24 F.2d 374. That the owner's duty also extends to providing safe quarters for the crew is assumed by both appellant and appellee; and rightly so, although judicial decisions on the precise point are few and have more often assumed than discussed the rule. See McCall v. Inter Harbor Nav. Co., 154 Or. 252, 59 P.2d 697; Stevens v. R. O'Brien & Co., 1 Cir., 62 F.2d 632; The Norland, 9 Cir., 101 F.2d 967; Curtis Bay Towing Co. v. Dean, 174 Md. 498, 199 A. 521.

The sole question presented by the appeal is whether the evidence was sufficient to have required leaving the case to the jury. The sleeping quarters of the firemen were in a room below decks to which access was had by an enclosed stairway leading down from the freight deck. The complaints against these quarters are lack of ventilation and excessive dampness. There were no port holes in the room and the air which entered it came from the freight deck down the stairway. Except in rough weather the freight deck obtained outside air through open port holes. There was an opening in the sheathing enclosing one side of the stairway and an electric fan was placed in the firemen's room adjacent to this opening. The testimony refers to the fan as an "intake fan", although there is some dispute whether it sucked air through the opening or merely stirred the air within the room. A wooden partition, with a doorway, divided the firemen's quarters from the room aft in which the negro waiters slept. In their room was a goodsized exhaust fan with a vent leading to the open air above decks, the control switch being on the bridge. The exhaust fan was evidently adequate to draw the air from the firemen's room as well as from the waiters', for there was testimony that it stirred up dust in the firemen's quarters. No expert witness was called to testify that this system of ventilation was insufficient. On the contrary it appears that the firemen's quarters were inspected every three months by the United States Local Inspectors and no change in them was ever required; and the chief engineer of the ship testified without contradiction that the quarters in respect to ventilation were about the same as in the average run of vessels of the same class. In support of his charge of faulty ventilation Rey testified that "There was no air and it was hot and there was no ventilation and we can't sleep in there", although in another connection he also testified that he slept "all right, slept long", and felt well up to the very day before he left the ship. Another fireman, Barela, said that the exhaust fan did not keep the air "good" in the firemen's room. Other firemen found no fault with the quarters. To prove a ventilating system so insufficient as to render the shipowner liable for negligence in providing unsuitable quarters, we believe some expert testimony should be required. But in any event testimony of the character here adduced on behalf of the plaintiff could not be allowed to overcome the uncontradicted evidence that the ventilation of the firemen's quarters was passed by the Local Inspectors and was as good as in other ships of the same class. The evidence as to improper ventilation was too slight to be submitted to the jury.

As to the charge of excessive dampness the plaintiff made a somewhat stronger showing. There was proof on his behalf, though contradicted, that the radiator continuously leaked considerable quantities of water; that the skin of the ship and the steel bulkhead adjacent to Rey's bunk sweated; that his bedding was constantly damp; and that the toilet room was often wet and dirty. Whether there was sufficient evidence of negligence in these respects to require submission to the jury we need not say, because there was no evidence that these conditions were the proximate cause of his tuberculosis.

Rey testified that until March 4, 1938 he never felt sick. The following day he went to a hospital in Providence, R. I., where his condition was diagnosed as bronchial pneumonia. He remained there until March 19th. He then came to New York and went to the U. S. Marine Hospital at Hudson and Jay Streets on the 21st. There his case was diagnosed as chronic pulmonary tuberculosis. On the 24th of March he was admitted to the Marine Hospital on Ellis Island. The diagnosis was chronic pulmonary tuberculosis and tertiary syphilis. He was discharged from the hospital June 29, 1939. The present action, which was commenced in April 1938, came on for trial in October 1939. The only medical testimony was that of Dr. George Lang. He had examined the plaintiff in April 1938 and again just before the trial. He testified that the conditions on shipboard and the existence of tertiary syphilis would lower the plaintiff's resistance and would be a competent producing cause of the...