Strom v. Anderson, Civ. 5326.

• Decision Date: 22 September 1953
• Docket Number: Civ. 5326.
• Citation: 114 F. Supp. 767
• Parties: STROM v. ANDERSON.
• Court: U.S. District Court — Western District of New York

114 F. Supp. 767

STROM v. ANDERSON.

Civ. 5326.

United States District Court W. D. New York.

September 22, 1953.

Rogerson & Hewes, Jamestown, N. Y., for plaintiff, J. Russell Rogerson, Jamestown, N. Y., of counsel.

Bigham, Englar, Jones & Houston, New York City, for defendant, Arthur E. Otten, Buffalo, N. Y., of counsel.

KNIGHT, Chief Judge.

The complaint in this action named Anderson and one Carl Frisk as defendants. Frisk was never served with process and at the trial defendant's counsel moved to strike Carl Frisk as a defendant which motion, without objection, was granted.

Trial was had to the Court without a jury.

The undisputed facts are: Defendant Anderson, on July 7, 1949, was the owner of a Gar Wood motor boat which was being operated with his permission by Carl Frisk on Lake Chautauqua in front of the Viking Club property; that Frisk was a mature man, 65 years of age; that the motor boat was equipped with a Chrysler 115 h. p. motor and was capable of travelling 35 miles an hour; that the motor boat was purchased by Anderson and delivered to him late in June, 1949; that plaintiff was one of several persons swimming at a point between the dock and a raft located 35 to 50 feet beyond the dock; that plaintiff was at the time of the accident standing in the water 10 to 15 feet from the end of the dock; that Frisk, then operating the boat, was coming alongside the dock and suddenly gave it (the motor) the gas and it started up pretty fast and was driven at plaintiff who was between the dock and raft; that plaintiff was struck by the propeller of the motor boat and the muscles, tendons, ligaments and bones of the lower third of plaintiff's left leg were badly torn and lacerated, he was bleeding profusely and suffered shock; that plaintiff was hospitalized and his wounds treated, cleansed, his muscles and tendons put in position and sutured, fractures were reduced and the leg immobilized; that the fractured bones of plaintiff's leg later became infected in spite of treatments and dressings and continued to discharge until late 1950 or early 1951; that plaintiff lost wages and was obliged to pay his doctor bill and hospital bill; that plaintiff returned to work in a new sitting job; that plaintiff worked in the new sitting job approximately 16 months and earned $51 a week which was about $7 a week less than he earned before the accident; that since May, 1951, plaintiff has been working at his regular job; that after October or November, 1951, plaintiff earned substantially more than he had earned prior to the accident, and his present take home pay is $81.90 a week.

The first cause of action alleged in the amended complaint has been dismissed by consent.

Under the second cause of action alleged in the amended complaint, plaintiff seeks to recover damages from the defendant Anderson for his negligence and total disregard of the rights and safety of plaintiff, knowing that the operation of Anderson's high speed and powerful motorboat by a person known to be inexperienced was extremely hazardous and dangerous to the lives and safety of persons using the waters of Lake Chautauqua at or near the property of the Order of Vikings, on July 7, 1949.

The disputed matters involved are whether Frisk was or was not, to the knowledge of defendant Anderson, a person competent to be entrusted with the operation and control of the Gar Wood motorboat belonging to defendant Anderson and for whose negligence Anderson would be liable.

From the testimony, examinations before trial and briefs it appears that Frisk, a mild mannered person, over 64 years of age at the time of the accident, was operating the Gar Wood Motor-boat of defendant Anderson; that the boat was capable of a speed up to 35 miles an hour; that Anderson had previously owned a Chris-Craft motor-boat which he had instructed Frisk to operate; that the Gar Wood motor-boat involved in the accident was operated in a manner similar to the Chris-Craft; that the Gar Wood boat had been loaned to Anderson during 1948 and was finally purchased by Anderson from Norris, who delivered the boat in the latter part of June, 1949; that Anderson obtained a license for the Gar Wood boat on June 29, 1949; that Frisk arrived at Anderson's place for his vacation on July 2, 1949; that Frisk had operated the Gar Wood boat during 1948 and more than twice between July 2 and 7, 1949 and on the morning of July 7, 1949, Anderson...