Smith v. Socony Vacuum Oil Co. Inc.

• Decision Date: 04 April 1938
• Docket Number: No. 131.,131.
• Citation: 96 F.2d 98
• Parties: SMITH v. SOCONY VACUUM OIL CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

96 F.2d 98 (1938)

SMITH v. SOCONY VACUUM OIL CO., Inc.

No. 131.

Circuit Court of Appeals, Second Circuit.

April 4, 1938.

Louis Mead Treadwell, of New York City (Henry B. Potter, of New York City, of counsel), for appellant.

George J. Engelman, of New York City, for appellee.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal by the defendant from a judgment in an action by the plaintiff to recover damages (1) under the Jones Act, 46 U.S.C.A. § 688, based on alleged negligence, and (2) to recover for maintenance and cure.

Plaintiff was an oiler working in the engine room of defendant's ship. It was a part of his duty to determine from time to time whether the low-pressure bearing and journal of the engine required lubrication. In doing this he was accustomed to examine the low-pressure journal about once every twenty minutes in order to discover by touch whether it was getting too hot. In the course of the inspection he would also look at the color of the oil that had come off on his fingers because the color would indicate whether the journal was beginning to gripe owing to excessive friction. Both the color of the oil and the heat of the journal would determine whether there was need of more lubrication. In order to reach the journal, he placed his right foot on a step above the floor of the engine room, placed his left foot on the crank frame to which the step was attached, and held on to the slush pan with his left hand while with his right hand he reached down to feel the journal and determine whether it was overheated. In attempting to resume his position on the floor of the engine room he started to bring down his left foot. This, he said, caught on a bracket which had got out of repair and had swung loose from the step which it was designed in part to support. The catching of his leg in the loose bracket caused him to tumble and is said to have resulted in injuries for which he sought to recover damages in the present action.

The plaintiff testified that he had informed the first assistant engineer of the defective condition of the bracket some two or three weeks before the time of the accident. It is an inference from the plaintiff's version of the case that he attempted to inspect the journal in the only way practicable. He said in substance that if he had stood on the floor of the engine room while reaching to feel the journal he would have been in danger of falling into the opening adjacent to the journal because he could not reach the grab iron with his right hand to support himself while making the inspection.

The foregoing is believed to set forth the essentials of the plaintiff's story and to have been the basis for the recovery of $5,000 allowed by the jury upon the first count of the complaint for the injuries resulting from negligence, and for the recovery of $535 allowed by the jury under the second count for maintenance and cure. From the judgment for $5,578.39 entered on the verdict for the above two items the defendant appeals.

A number of witnesses called for the defendant testified that the step had never had a supporting bracket and that there was nothing defective about it; that the plaintiff could feel of the journal and determine whether it needed lubrication while standing with both feet on the floor of the engine room, and that the step, which was ten inches above the floor, was not designed for use while the vessel was at sea, but only for use in port while repairs were being made. There was also testimony by the first assistant engineer that he never saw the plaintiff or any of the other oilers standing on the step to feel the bearing, and that it would be dangerous to do so. There was also testimony by the first assistant engineer that he had seen the plaintiff feel the journal while having both his feet on the floor plate and his right hand on the guard rail. Although plaintiff's story is not supported by as much testimony as defendants, we do not regard it as too inherently improbable for submission to the jury.

Defendant's principal contention on this appeal is that, even if there was a defective bracket below the step and it swung out of place, caught plaintiff's leg as he stepped down and caused him to tumble, yet in performing his task he had a choice of methods — one the safe method of standing on the floor of the engine room and supporting himself by the guard rail (as he leaned forward) and the other the dangerous and really inconvenient method of climbing up on the step and reaching down with the chance that he might encounter the defective bracket when he returned to the floor. Because the above choice was available and no one ever directed the plaintiff to inspect the journal by using the step, defendant argues that, when he chose the unsafe course, he must be regarded as having assumed the risk incident to the method he adopted. This point was sharply raised by the refusal of the trial judge to recognize assumption of risk as a defense under any circumstances. He left to the jury only the question of negligence and contributory negligence and refused defendant's request to charge that, if they believed that "the plaintiff could have felt the bearing while standing with both of his feet on the floor plate and that it was not necessary for him to stand upon the step plate, he assumed the risk of any injury he may have sustained." The judge, after saying: "I refuse so to charge," immediately added: "Gentlemen I charge you now that the ship owner is under a duty to furnish a seaman with a safe place to work, give him safe appliances and safe tools, and that is his duty. There is no contributory...