Sotell v. Maritime Overseas Inc.

• Decision Date: 26 February 1973
• Docket Number: 478,34986.,Dockets 35036,No. 394,394
• Citation: 474 F.2d 794
• Parties: Nick SOTELL, Plaintiff-Appellant, v. MARITIME OVERSEAS INC., and Ocean Transportation Co., Inc., Defendants-Appellees. OCEAN TRANSPORTATION COMPANY INCORPORATED, Defendant and Third Party Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORP., and New York Shipbuilding Corp., Third Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

474 F.2d 794 (1973)

Nick SOTELL, Plaintiff-Appellant, v. MARITIME OVERSEAS INC., and Ocean Transportation Co., Inc., Defendants-Appellees.

OCEAN TRANSPORTATION COMPANY INCORPORATED, Defendant and Third Party Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORP., and New York Shipbuilding Corp., Third Party Defendants-Appellees.

Nos. 394, 478, Dockets 35036, 34986.

United States Court of Appeals, Second Circuit.

Argued January 29, 1973.

Decided February 26, 1973.

Ned R. Phillips, New York City (Abraham E. Freedman, New York City, on the brief), for plaintiff-appellant.

William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, Hollis M. Walker, Jr., and Richard A. Corwin, New York City, on the brief), for defendants-appellees and defendant and third party plaintiff-appellant.

Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

Nick Sotell, a sixty-five year old seaman with over forty years of sailing experience, was serving as Second Assistant Engineer aboard the t/s Ocean Ulla, owned and managed respectively by the defendants Ocean Transportation Co. and Maritime Overseas, Inc. (shipowner), when, on October 4, 1965, a turbine explosion in the port forced draft blower ripped loose pieces of asbestos insulation which injured him. He brought this action against the shipowner under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness. The shipowner brought a third-party action against Westinghouse Electric Corporation, the manufacturer of the turbine, and New York Shipbuilding Corporation, the builder of the Ocean Ulla. In the primary action the jury found in favor of the shipowner; and the third-party action, tried to the court alone, was dismissed without prejudice.

At the trial, Sotell testified that as part of his job in helping to secure the port boiler for its annual cleaning, he was ordered by the Chief Engineer to shut down the port forced draft blower which was located in the fidley, the highest level of the engine room. As he reached the blower, he testified that the turbine was going "like a jet," vibrating, and throwing asbestos lagging, and that he tried to stop it with the emergency "over speed trip." When this attempt failed, however, he began to close the steam intake valve, but, before he could take more than several turns on it, the blower exploded and he was hit in the head by some asbestos pieces which knocked him "out for a few minutes." He then got up, finished closing the intake valve, and moved to the other side of the blower to close the exhaust valve when the Chief Engineer arrived.

The only other witness on the liability issue, Chief Engineer Macon Rowse, testified that he was about forty feet below the fidley when he heard an explosion. After he started up the ladder to investigate, he heard a sound like a tube being deflated and noticed that the back pressure gage was falling. When Rowse reached the blower, within thirty seconds after the explosion, Sotell was at the exhaust valve and, without being asked, said to Rowse, "I didn't touch them, Chief, I didn't touch them."

The Chief Engineer testified that Sotell, contrary to proper operating procedure, must have closed the exhaust valve before closing the intake or supply valve, and that after the explosion, he had reopened the exhaust valve. This explained the noise of deflation, accompanied by the drop in the back pressure line after the explosion, because, if the exhaust valve had been opened at the time of the explosion, the back pressure would have dropped immediately.

Additional testimony was developed at the trial to the effect that the port forced draft blower had been in good condition before the explosion and that all of its parts were in good working order afterwards, except that its casing was split open. Furthermore, Sotell admitted that he had not read the instruction book for operating this machinery, and he had not previously closed down this blower or worked with similar equipment for a number of years. Sotell also testified at trial that the intake valve was very low and that he bent down to turn it, but he had testified at the taking of his deposition that he could reach it standing up. Actually it is undisputed that the exhaust valve was at a higher level than the intake valve.

The appellant claims that he was entitled to a directed verdict or a judgment notwithstanding the verdict or, at the very least a new trial. If the only evidence in the case was the undisputed fact that the plaintiff was injured by an explosion of unknown origin, then he probably would have been entitled to a verdict, Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2 Cir. 1970); Van Carpals v. The S.S. American Harvester, 297 F.2d 9 (2 Cir. 1961), cert. denied, 369 U.S. 865, 82 S. Ct. 1031, 8 L.Ed.2d 84 (1962); Sprague v. The Texas Co., 250 F.2d 123 (2 Cir. 1957). Here, however, the defendant produced evidence which supported a finding that the plaintiff's negligent actions alone were the cause of the explosion; and the court correctly charged, without objection, that the plaintiff could not recover if his negligence was the sole cause of the accident, Pisano v. The S. S. Benny Skou, 346 F.2d 993 (2 Cir.), cert. denied, 382 U.S. 938, 86 S.Ct. 389, 15 L.Ed.2d 349 (1965); Dixon v. United States, 219 F.2d 10, 16-17 (2 Cir. 1955); Donovan v. Esso Shipping Co., 259 F.2d 65, 67 (3 Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L. Ed.2d 572 (1959); cf., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971).

The appellant argues, however, that he was entitled to a directed verdict or judgment n. o. v. on the ground that the defendant failed to produce sufficient evidence that he did anything wrong, or, that if he did, that it was a proximate cause of the explosion. In order to prevail in this argument, however, he must show either that there was no evidence on the point or that the evidence, when viewed in the light most favorable to the appellee, would be such that reasonable men could not find for the defendant, Fortunato v. Ford Motor Co., 464 F.2d 962, 965 (2 Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L. Ed.2d 487 (1972); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1132 (2 Cir.), cert. denied, 400 U.S. 916, 91 S.Ct. 175, 27 L.Ed.2d 155 (1970); Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2 Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970).

There was certainly ample evidence based upon the Chief Engineer's testimony and certain inconsistencies in Sotell's for the jury to conclude that the plaintiff made the mistake of closing the exhaust valve before shutting off the intake valve. Furthermore, the jury was warranted in deciding that such action was the sole cause of the explosion. While it is true that no witness...