Smith v. Reinauer Oil Transport

• Decision Date: 24 June 1958
• Docket Number: No. 5332.,5332.
• Citation: 256 F.2d 646
• Parties: Ida M. SMITH, Administratrix, Plaintiff, Appellant, v. REINAUER OIL TRANSPORT, Inc., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

256 F.2d 646 (1958)

Ida M. SMITH, Administratrix, Plaintiff, Appellant, v. REINAUER OIL TRANSPORT, Inc., Defendant, Appellee.

No. 5332.

United States Court of Appeals First Circuit.

Heard May 6, 1958.

Decided June 24, 1958.

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John O. Parker, Boston, Mass., with whom Ely, Bartlett & Brown, Boston, Mass., was on brief, for appellant.

Thomas H. Walsh, Boston, Mass., with whom Leo F. Glynn, Boston, Mass., was on brief for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This is a distressing case, in which the administratrix of a drowned seaman is suing for wrongful death under the Jones Act. 46 U.S.C.A. § 688. Nobody knows what exactly happened to him except that his dead body was fished out of the water several months after his disappearance, and that the proven circumstances warrant the inference that he fell into the water accidentally and was accidentally drowned. But as the Supreme Court has frequently reminded us, the Congress has not provided a workmen's compensation act for seamen; and so, when action is brought under the Jones Act, the plaintiff has the burden of proof that the injury or death of the seaman has been caused, in whole or in part, by negligence of the employer or or its officers, agents or employees. Nor does the plaintiff get to the jury merely by claiming that the seaman's death was caused by the employer's negligence, for it is incontrovertible, as we pointed out in New York, New Haven & Hartford R. Co. v. Dox, 1 Cir., 1957, 249 F.2d 572, 573, that

"plaintiff\'s right to a jury trial, as guaranteed by the Seventh Amendment to the Federal Constitution, is not an unqualified right to have the jury pass on issues of negligence and proximate cause in all cases. At the date of the adoption of the Seventh Amendment, and for centuries prior thereto, the common law had prescribed a function to be performed by the trial judge, as well as a function to be performed by the jury, in the determination of issues of negligence and of proximate causation. See Herron v. Southern Pacific Co., 1931, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857. The jury was the body competent to decide all questions of credibility of witnesses, and all questions of fact fairly in dispute, together with inferences reasonably to be drawn therefrom. But the case might never reach the jury, because the trial judge had to determine the preliminary issue whether the plaintiff had shown enough from which a fair-minded jury might legitimately return a plaintiff\'s verdict."

This preliminary judgment on the facts, which is entrusted to the trial judge, is often a delicate and difficult one to make. It is clearly not enough for the judge to determine whether he, individually, if he were sitting on the jury, would draw the inference of causal negligence. To a considerable extent the judge must be tolerant of differences of opinion, and he must recognize the possibility that, whatever might be his own view, other fair-minded men might reasonably arrive at a contrary conclusion. Often there are questions of degree, in which it is particularly hard for the judge, in exercising this preliminary judgment, to exclude altogether the personal equation. It is too easy to say that the jury must not be allowed to base a finding of causal negligence upon "speculation and conjecture", for as the Supreme Court said in Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916: "Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference."

No formal test that can be prescribed is so water-tight as to preclude the possibility of differences of opinion as to the correctness of the trial judge's preliminary judgment on the facts. In general terms, it can be said that a case should not be taken from the jury if, on the evidence presented, there is a rational basis for the inference that the defendant was probably in some respect negligent, and that the injuries complained of were caused, in whole or in part, by such negligence.

If an appellate court is of the view that the trial judge made an error of judgment in withdrawing a case from the jury, or in entering judgment for the defendant notwithstanding a plaintiff's verdict, a reversal is no doubt called for; but we cannot see that anything is gained by blowing up that error of judgment into a denial of the constitutional right to a jury trial as guaranteed by the Seventh Amendment. Such treatment makes the error sound worse than it really is.

We come now to the facts of the case before us.

The decedent, Fred Smith, joined the crew of the Harold Reinauer in Hancock, Maine, on December 2, 1953, as a utility man to do cleaning and painting in the engine room. Prior to that date Smith had been a member of the crew of various lobster smacks, and from November, 1952, he had served as an oiler aboard the motor vessel Bert Reinauer.

The Harold is a 237-ft. steel motor tanker of 218 gross tons. Her cargo is fuel oil, and her capacity is about 7,000 barrels. She is a coastwise tanker stopping primarily at smaller New England ports and Boston. Generally, members of the crew are kept on board while the vessel is in port in order to man the pumps necessary to take on and discharge cargo.

On Saturday morning, December 12, 1953, the Harold was tied up portside to her home pier in East Boston. The bow was pointing toward the harbor. She was made fast by four rope lines or hawsers, two spring lines and a forward and aft breast line. On the Harold's starboard side the R.T.C. 55 was made fast, and abreast of the R.T.C. 55 lay a small tug, the Andrew J. Ward. At a nearby pier some 75 feet way, the Lucy Reinauer, a vessel of similar size to the Harold, was secured.

The pier to which the vessels were moored is owned by the Boston Fuel Transportation, Inc., a corporation in identical ownership with the defendant corporation. A watchman was provided by Boston Fuel Transportation, Inc., to oversee the piers, the buildings on the premises, and smaller unattended vessels. There were two lights on top of the watchman's shack and a pole on the corner of the dock containing a floodlight, which was some 75 feet from the stern and starboard side of the Harold and partially lighted its starboard side.

On this occasion, since there was no loading or discharging function to be accomplished, all the members of the crew, except Fred Smith, left the ship for the week-end about four o'clock in the afternoon. Smith stayed on board to serve as watchman and to tend the lines as necessitated by the rising and falling of the tide. According to the testimony of the chief engineer, called as a witness by the plaintiff, he had given instructions to Smith as to the operation of the light switches aboard the vessel and as to how to recharge the batteries which operated the lights. The chief engineer also testified that if all the lights of the ship were turned on, it would take eight or ten hours to run the batteries down.

The weather conditions on the night of December 12, 1953, were bad. It commenced to rain around five o'clock in the afternoon and continued well into Sunday.

The shore watchman, called as a witness by the plaintiff, testified that he saw Smith on the pier around seven o'clock in the evening on December 12 and that at that time he delivered to him two letters, upon receiving which Smith turned and headed in the general direction of his ship. So far as the evidence discloses, that was the last time anybody saw Smith alive. During the following March Smith's body was discovered and pulled out of the water at a point near where the stern of the Harold had rested during the previous December. The death certificate, issued by the Health Department of the City of Boston, certified that the cause of Smith's death was "Asphyxia due to...