South Atlantic Steamship Co. v. Munkacsy

• Decision Date: 07 July 1936
• Court: United States State Supreme Court of Delaware
• Parties: SOUTH ATLANTIC STEAMSHIP COMPANY OF DELAWARE, a corporation of the State of Delaware, Defendant Below, Plaintiff in Error, v. FRANK MUNKACSY, Plaintiff Below, Defendant in Error

187 A. 600

37 Del. 580

SOUTH ATLANTIC STEAMSHIP COMPANY OF DELAWARE, a corporation of the State of Delaware, Defendant Below, Plaintiff in Error, v. FRANK MUNKACSY, Plaintiff Below, Defendant in Error

Supreme Court of Delaware

July 7, 1936

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Supreme Court, No. 1, October Term, 1935.

Writ of Error to the Superior Court for New Castle County, No. 119, January Term, 1934.

The action in the court below was founded upon a statute of the United States, commonly known as the Jones Act, § 33 (46 U. S.C. A., § 688) providing that

"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply."

The plaintiff below, a seaman in the employment of the defendant below, sought to recover damages for personal injuries sustained by him in the course of his employment, and for loss of wages and for maintenance while unable to work.

The declaration alleged that the plaintiff was employed by the defendant as a seaman on board its vessel, "Liberty Glo," which, at the time of the occurrence of the injuries sued for, was on the high seas proceeding from Ghent, Belgium, to Wilmington, North Carolina; that the defendant, negligently and carelessly through its servants or agents, required the plaintiff to perform work that was perilous, precarious and fraught with danger when such work was not necessary to preserve the ship or crew, in that, it required him to climb the starboard ventilator of the No. 2 hatch at a time when a high sea was running causing the vessel to roll and pitch, for the purpose of washing the ventilator, which work was dangerous in that there was nothing for the plaintiff to hold to, nor other appliance upon which he could support himself while engaged in the work; and that as a result of the negligence, the plaintiff was caused to be thrown to the deck, whereby the injury and damage were sustained.

The facts were not in dispute except in one particular, whether the plaintiff was commanded to do the work. The plaintiff below was an able seaman of six years experience and had been employed on the "Liberty Glo" during three previous voyages. After breakfast on the day in question the boatswain directed the crew to wash buff paint starting on the forward-well deck and working aft. This work is known as "soogying." The ventilator of the No. 2 hatch was situated at the after end of the forward-well deck on the starboard side, and about two and one-half feet in front of a wall or bulkhead to which it was fastened by two flat three inch wide angle irons about eleven feet above the deck, the angle irons being about two feet apart at the bulkhead and coming together in a V-shape at the ventilator. There was a ladder on the front of the ventilator up to approximately the height of the angle irons. When, in the course of the work, this ventilator was reached, there was a moderate wind, with a long ground swell, causing the vessel to roll and pitch to such extent that with six and one-half feet freeboard she was taking green sea through the scuppers and floodgates. The plaintiff below testified:

"I asked the boatswain how about this ventilator? He said, yes we might as well get the ventilator too. So he sent me up there. I was ordered to go up there and get the ventilator. I turned to at one o'clock. I asked the boatswain about this ventilator, and he said, yes, we will get everything; soogy everything as we go. He told me to go up the ventilator and soogy it."

The plaintiff below climbed the ladder to the angle irons and took his stand with one foot on each of the angle irons, facing the ventilator. The ventilator was cylindrical in shape with the opening away from the plaintiff and extended about five feet above the angle irons. The circumference of the ventilator was too large to be encircled with an arm and there was no grip or contrivance to hold to, but with his left hand on the ventilator as a brace, he began to wash the ventilator. The ship took a starboard roll causing the plaintiff to lose his balance and fall to the deck. The plaintiff testified that he had done this work before under conditions substantially similar.

The testimony of the boatswain was taken by deposition on short notice. The plaintiff below was not represented, but an offer was made to take the testimony again if the plaintiff so desired. It appeared from the record that counsel for the defendant below made such offer, to which it was replied that the deposition could stand. This was not denied. The record, of course, showed no objections to the questions asked of the witness, but at the trial objections were made and sustained to the following questions: Do you consider it a dangerous job? Have you ever seen anybody injured in the process of washing one of these ventilators? Do you consider the weather on this particular day smooth enough to make it safe to do this job? If the weather had been rough enough to make it unsafe, would you have ordered the job done? Was anyone hurt in doing that (washing) the other ventilators on the same deck on that day? Knowing the weather as such as you remember it on that day, can a man ordinarily support himself by putting his hands on the ventilator and bracing his body on the bulkhead? And would that make it a perfectly safe thing to do?

At the close of the testimony the defendant below moved for a directed verdict on the grounds (1) that negligence as laid in the declaration had not been proved, (2) that if there was negligence it was not the proximate cause of the injury and (3) the risk of injury was an ordinary risk of a seaman's employment, which the plaintiff had assumed and for which there was no recovery. The motion was denied.

One of the special instructions requested by the defendant below required the court to charge as a matter of law that there could be no recovery, because of assumption of risk, if the jury found that washing the ventilator under the conditions then obtaining was an ordinary risk of the employment, unless the plaintiff below considered the work dangerous and that he desired to avoid it, but dared not refuse to obey because he had been ordered to do the work and was in fear of punishment if he disobeyed.

The court charged that, ordinarily, a seaman assumes the usual risks incident to his employment and assumes the risks of all dangers which are open and obvious; but where the seaman acts in obedience to an order of his superior officer, which he is bound to obey, he does not assume the risks necessarily incident to executing the order; but that for the plaintiff to recover, the jury must be satisfied, not only that the plaintiff was directed by the boatswain to wash the ventilator, but that the work in question, in the circumstances then prevailing was perilous and fraught with danger and not necessary at the time to preserve the safety of the ship or cargo, and that the plaintiff was injured as a result of obeying the order.

The judgment is sustained.

William S. Potter (of Ward and Gray) and Alexander R. Lawton, Jr., (of Lawton and Cunningham, of Savannah, Ga.) for plaintiff in error.

C. Edward Duffy and Simone N. Gazan (of New York City) for defendant in error.

WOLCOTT, Ch., LAYTON, C. J., RICHARDS, RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

The plaintiff in error excepted to the rulings of the trial judge sustaining objections, interposed at the trial, to certain questions and answers contained in the deposition of the boatswain, Rogers. Error is claimed in that the testimony elicited by the questions was of real probative value and pertinent to the issue of proximate cause, and also in that the defendant in error waived all right to object to the depositions at the trial.

With respect to the first ground of error, the argument of the plaintiff in error runs in this fashion: the question at issue was whether the boatswain was negligent in ordering Munkacsy to wash the ventilator in the weather conditions prevailing and in the circumstances existing. Therefore, it was necessary for the jury to determine whether the boatswain had any reason to anticipate that injury would follow from obedience to the order, for, unless there was some reason for him to anticipate injury as a proximate result, the order was not negligent and, consequently, no action could be based upon it.

With regard to the questions, "Have you ever seen anyone injured in the process of washing one of these ventilators?" and, "Was anyone hurt in doing that (washing) the other ventilators on the same deck on that day?" it will not be seriously contended, we think, that the negative answers given could have any probative value. Whether the witness has ever seen anyone hurt in washing the ventilators at other times, or on the same day, did not tend to prove that his order, in the precise circumstances, was non-negligent. Many acts of negligence do not result in injury, and, as will hereafter be shown, negligence is not to be measured by the actor's own conception of the nature and quality of his acts or omissions.

The other questions were objectionable for two reasons. They called for the opinion of the witness. The general rule is that opinions of witnesses are irrelevant. Of necessity there are exceptions to the rule. Upon matters which may be supposed to be outside the knowledge of persons of common education and experience, and with respect to which they are likely to be incapable of forming a correct judgment, witnesses shown to be...