Scarberry v. Ohio River Company, Civ. A. No. 1147

• Decision Date: 25 April 1963
• Docket Number: Civ. A. No. 1147,Admiralty No. 1148.
• Citation: 217 F. Supp. 189
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Norman R. SCARBERRY, Plaintiff-Libellant, v. The OHIO RIVER COMPANY, a Corporation, Defendant-Respondent.

217 F. Supp. 189

Norman R. SCARBERRY, Plaintiff-Libellant, v. The OHIO RIVER COMPANY, a Corporation, Defendant-Respondent.

Civ. A. No. 1147, Admiralty No. 1148.

United States District Court S. D. West Virginia, at Huntington.

April 25, 1963.

James P. Gill, Pittsburgh, Pa., and Arthur N. Smith, Jr., Charleston, W. Va., for plaintiff-libellant.

Campbell, McNeer, Woods, Bagley & Emerson, Charles F. Bagley, Huntington, W. Va., and Rose, Houston, Cooper & Schmidt, Harold R. Schmidt, Pittsburgh, Pa., for defendant-respondent.

HARRY E. WATKINS, District Judge.

This action is brought under the Jones Act (46 U.S.C.A. § 688) to recover for personal injuries sustained by plaintiff. The complaint alleges negligence on the part of the defendant, and is also brought under general maritime and admiralty law for unseaworthiness, and for maintenance and cure. The claim for maintenance and cure was settled for the sum of $4,070.00 during the trial, but all other issues of law and fact were submitted to the court for decision without a jury.

The incident, which is the subject of this action, occurred on April 18, 1962, on board defendant's towboat, the "John J. Rowe," on the Ohio River near Cincinnati, Ohio. Plaintiff was employed by the defendant as a "striker" or "oiler," on the towboat. After oiling a part of the port engine, plaintiff was in the process of ascending to the main deck. In doing so, he grasped a guard railing, as was the normal custom and practice, to pull himself up onto the main deck. Instead of being welded securely, the forward end of the railing was tied to an upright post with soft bailing wire. The railing broke and plaintiff fell backward and downward, striking his head a severe blow against the port engine. A judgment is allowed against the defendant shipowner, based upon a finding that defendant was negligent in knowingly maintaining the guard rail in this condition, and that this defective railing created an unseaworthy condition, and that such unseaworthy condition and negligence were the proximate causes of the accident and the resulting injuries.

FINDINGS OF FACT

1. Norman R. Scarberry, plaintiff, is a citizen and resident of West Virginia, residing at Point Pleasant, West Virginia, and was 42 years of age at the time of the accident. Defendant, The Ohio River Company, is a West Virginia corporation, having its principal office and place of business in Cincinnati, Ohio.

2. On April 18, 1962, the date of the accident, plaintiff was employed as a striker or oiler aboard the towboat "John J. Rowe," owned and operated by defendant. He had been employed by defendant for about 6 years prior to the accident, and defendant had found him to be a steady and reliable worker. His duties on the "John J. Rowe" were to take care of the engines; do the oiling; do the greasing; and to assist the engineer at any time. These duties of a striker or oiler were routine and were generally done without specific instructions from the engineer on duty. Plaintiff had been on duty on this towboat for about 7 to 10 days prior to the date of accident. He was a licensed engineer, holding a license issued by the United States Coast Guard.

3. On the date of the accident, plaintiff's tour of duty was from midnight to 6:00 A.M., and his immediate superior, Ivan Patton, was with him in the engine room. In the course of his employment, and immediately prior to the accident, plaintiff had been oiling the "fuel racks" on the port engine of the three engines on the towboat. He had on prior occasions oiled the "fuel racks" on the engines, and, at the time of the accident, the fact that he was oiling the "fuel racks" was known to his immediate superior, Patton, who was present and saw what he was doing. Patton testified that he saw plaintiff take an oil can and go over to grease the "fuel racks" of the engine, that he saw what he was doing, and let him go on with his duties. In order for him to perform this work on the port engine, it was necessary for him to step down approximately 28 inches from the main deck to a catwalk which ran along the starboard side of the port engine. Those oiling or working on the port engine stood on this catwalk. Attached to the main deck was a railing consisting of two horizontal bars, attached to vertical stanchions or upright posts, which ran around the engine. On the starboard side of the port engine, the handrailing was in two sections with an opening in the middle of the handrail to permit ingress and egress to the catwalk. The forward section of this particular handrail was constructed by welding a top handrail onto two upright stanchions approximately 5 feet apart. At the time of the accident, and for at least 20 days prior to the accident, the top handrail was welded to the top of the stanchion at the opening, but the stanchion and top horizontal bar were held together at the other end of the horizontal bar at the forward stanchion by "bailing wire," which was wrapped around the forward stanchion and then wrapped around the top bar to hold the two together. Plaintiff's superior, Patton, the only other employee on this particular nightwatch with plaintiff, testified that the rail was "held by a wire. It had been welded." The wire holding the two parts together was about three times the diameter of a paper clip, and was a soft metal, easily bent, the type of wire obtained from bails of rags used on the "John J. Rowe." This condition had existed for at least 20 days prior to the accident. Plaintiff became aware of the existence of the wire around the handrailing shortly after he came aboard 7-10 days prior to the accident.

4. When the vessel was under way, there was considerable vibration in the engine room at all times, to such an extent that tools could not be left on a bench or they would vibrate off. When members of the crew arose from the catwalk to the main deck, it was customary and necessary to grasp one of the stanchions or one of the horizontal bars in the area of the opening and pull themselves up from the catwalk on to the main deck, a distance of about 28 inches, as there was no step between the main deck and the catwalk so that they could step up. The sole means of ingress to and egress from the catwalk was through the opening provided for that purpose. Plaintiff was in the act of attempting to arise from the catwalk to the main deck, after finishing his work of oiling, when the accident occurred. He had turned around with his back to the engine, facing the opening in the handrail, when he grasped the top of the handrail with his left hand, while in his right hand he held his oil can, which he had been using in his work. While grasping the handrail, he placed his right foot on the main deck and by exerting a pulling motion with his left arm, started to pull his weight from the catwalk to the main deck. When he was almost up to the main deck, the railing which he was using as a support gave way and he fell backwards, his head striking the forward part of the port engine, and rendering him unconscious. The railing broke loose from the stanchions at both ends. The weld at the opening in the center parted and the wrapped "bailing wire" on the forward end of the handrail parted or unraveled in such a way as to permit the rail to come loose at that end. Patton, who was only a few feet away, found plaintiff lying on his right side on the catwalk with a piece of handrail under his left arm. The handrail parted from the stanchions because it was not sufficiently attached to the forward stanchion. This, connected with the use being made of the handrail, caused the weld on the aft end to part, completely disengaging the handrail from the stanchions, thereby causing...