Rice v. Atlantic Gulf & Pacific Co.

• Decision Date: 09 October 1973
• Docket Number: No. 8,Docket 73-1151.,8
• Citation: 484 F.2d 1318
• Parties: Whitford A. RICE, Plaintiff-Appellant, v. ATLANTIC GULF & PACIFIC CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

484 F.2d 1318 (1973)

Whitford A. RICE, Plaintiff-Appellant, v. ATLANTIC GULF & PACIFIC CO., Defendant-Appellee.

No. 8, Docket 73-1151.

United States Court of Appeals, Second Circuit.

Argued September 24, 1973.

Decided October 9, 1973.

Lester E. Fetell, Brooklyn, N.Y. (Sergi & Fetell, Brooklyn, N. Y., of counsel), for plaintiff-appellant.

Roger P. McTiernan, New York City (Barry, McTiernan, Treanor & Moore, New York City, of counsel), for defendant-appellee.

Before KAUFMAN, Chief Judge, and MOORE and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

In this action by a seaman, Whitford A. Rice, against a dredge owner, Atlantic Gulf & Pacific Co. ("Atlantic"), for personal injuries allegedly caused by defendant's negligence and by unseaworthiness of the dredge, the jury, without making any finding on the issue of unseaworthiness, found that the accident was caused by Atlantic's negligence and awarded Rice $75,000. Thereafter defendant's motion for judgment n.o.v. was granted by Judge Carter, who set aside the verdict, dismissed the complaint (including the claim of unseaworthiness) and entered judgment for the defendant, D.C., 59 F.R.D. 280, from which Rice appeals. We affirm the judgment insofar as it dismissed the negligence claim. The dismissal of the unseaworthiness claim, however, is reversed and the case is remanded for a new trial of that issue.

Rice, who was employed by defendant as a fireman, was injured when, on June 26, 1967, he slipped and fell from a metal stairway leading up from the fire room to the main deck of Atlantic's dredge, the Barlow. His complaint, as supplemented by his pretrial memorandum, alleged that as a result of "the slipperiness and oiliness of the aforesaid metal stairway and the lifting or lurching of the vessel, plaintiff was caused to slip and fall, sustaining the injuries sued for herein, all by reason of the negligence of the defendant, its agents, servants and/or employees, the shipowner's failure to provide plaintiff with a reasonably safe place in which to work, and by reason of the unseaworthiness of the vessel, its gear and appurtenances."

At trial Rice testified that while he had not seen grease or oily substance on the stairway immediately before his fall or when he had used the stairway within an hour before the accident, he found oil on his shirt and right arm after his fall, which had not been there before. The Chief Engineer on the Barlow, James N. Spear, testified that there was "a certain amount of atomization of oil" in the Barlow's fire room, which frequently left a film "about" and that the defendant employed as part of the ship's permanent crew two wipers whose duties included cleaning off the film from equipment in the area, including the ladder in question. Rice also testified that it was part of his duty as a fireman to clean up any accumulation of grease or oil observed by him on a stair or deck of the fire room.

After both sides had rested Judge Carter denied motions by each for a directed verdict and submitted to the jury the issues of whether the accident had been caused by negligence or unseaworthiness. The jury foreman announced the verdict in Rice's favor on the issue of negligence but made no reference whatsoever to the issue of unseaworthiness. From Judge Carter's order setting aside the jury's verdict on grounds of insufficient evidence and granting judgment n.o.v. Rice appeals.

Negligence

We agree with the district court that the evidence was insufficient to support the jury's verdict that the accident was caused by negligence on the part of Atlantic. To find negligence the jury was required to find both that the alleged unsafe condition (oil on the ladder) existed and that Atlantic had notice of it (scienter). See, e.g., Poignant v. United States, 225 F.2d 595, 596 (2d Cir.1955). Aside from Spear's testimony (elicited during presentation of the defendant's case) concerning oil atomization, which was by itself insufficient, there was no evidence at trial tending to show actual or constructive notice. For instance, there was no testimony that an agent of Atlantic had actually seen an accumulation of oil or grease on the ladder prior to Rice's fall,¹ and no circumstantial evidence from which such observation might have been inferred. Furthermore, assuming there was such an accumulation of oil or grease on the ladder, there was no evidence regarding its size, its visibility, or the length of time it had been there. In the absence of such evidence the jury could not reasonably find actual or constructive notice. Cf. Daniels v. Pacific-Atlantic S.S. Co., 120 F.Supp. 96 (E.D.N.Y.1954) (directed verdict); Milin v. United States Lines, Inc., 31 N.Y.2d 336, 338 N.Y.S.2d 905, 291 N.E.2d 144 (1972) (directed verdict).

Unseaworthiness

In his opinion granting Atlantic's motion for judgment n.o.v. Judge Carter interpreted the jury's express finding of negligence as an implied rejection of the claim of unseaworthiness. We disagree. Indeed, since both claims rested upon the same alleged unsafe condition (oil or grease on the stairway), we might be justified in inferring (as Rice argues) that the jury must have found that a condition amounting to unseaworthiness had existed before it could find negligence. Cf. Spano v. N. V. Koninklijke Rotterdamsche Lloyd, ...