Thompson v. Erie R. Co.
| Decision Date | 10 April 1962 |
| Citation | 33 Misc.2d 514,227 N.Y.S.2d 80 |
| Parties | Leon A. THOMPSON, Plaintiff, v. ERIE RAILROAD COMPANY, Defendant. |
| Court | New York Supreme Court |
Jesse H. Finkler, New York City, Sol Lefkowitz, New York City, of counsel, for plaintiff.
Allen M. Taylor, New York City, John L. Quinlan and Robert J. DeBoissiere, New York City, of counsel, for defendant.
During the trial the jury was discharged and the case continued as a non-jury cause with a stipulation that the Court in the first instance determine the issue of liability, and that if this were resolved in plaintiff's favor the damages were to be assessed by the Court thereafter.
Defendant railroad contracted with Seaboard Terminal & Refrigeration Co., (Seaboard) for stevedore and marine handling operations on barges owned by it. Plaintiff, a longshoreman, in the employ of Seaboard, was injured when a gangplank or platform, which was being placed so as to bridge two barges, fell upon him. In his complaint he charges that this occurred 'by reason of unseaworthiness of the vessel and by reason of defendant's failure to provide gear and equipment reasonably safe and adequate for the intended purpose of shifting gangplanks and similar appurtenances.' The complaint also chanrges negligence on the theory that defendant failed to furnish plaintiff with a safe place to work.
There was not a scintilla of proof to support any recovery on the theory of negligence and this claim has apparently been abandoned for no reference to it is contained in plaintiff's brief. In any event, neither the gangplank nor the gear or equipment employed to move it were defective nor was there any affirmative act of negligence by any servant of defendant which caused the occurrence.
The sole issue therefore is whether defendant is liable under applicable maritime decisional law for failure to provide equipment reasonably adequate for the purpose of shifting the gangplank and placing it as a bridge across the two barges.
The Court finds the following facts to be established by the evidence and stipulations of the parties:
On October 27, 1954 at about 8 a. m. plaintiff, who had worked for Seaboard for about 2 years, reported for the morning shape-up at Pier 48 North River and was hired about 8:20 a. m. At the pier the bulkhead contained 3 berths for mooring barges or floats upon which railroad cars were standing. Behind the barge moored in the center berth another barge was tied. Both had apparently been towed across from New Jersey to be unloaded in New York. Plaintiff was assigned to work on the barges in the center berth. When he arrived there he saw 8 or 9 men attempting to move a gangplank onto the first barge which was moored to the bulkhead. This gangplank was to be used to bridge the area between this barge and the one tied to the rear of it. The crew of men were endeavoring to move it to the barge over an existing gangplank which extended from the first barge to the dock. The tide and wind at the time were very high causing the barges to be high above the level of the dock. As a result the gangplank over which the second plank was to be moved was at a very sharp upward angle. Some men had grabbed the ropes attached at each of the 4 corners and kept pulling at them while others kept pushing the plank but it kept sliding down. This had occurred while plaintiff was being 'shaped up' and he was sent with additional men to assist in the operation. After several further unsuccessful attempts, plaintiff suggested that a tractor be used and one was procured. The plank was tied to the tractor and with the men assisting in pushing and pulling it, the plank was finally gotten onto the float. There it was placed on a hand truck and rolled several feet along the platform of the float. Plaintiff then went to the other end of the float. There were other men 'tieing in' the second float and he assisted them. Thereupon a hi-lo driver (a hi-lo is 'a vehicle which has a contraption in the front of it to lift things up' and move them) brought the gangplank which had been put aboard the barge down to the rear of the barge and plaintiff and one or two other men attempted to lift and guide the gangplank with the assistance of the hi-lo onto the platform of the second float. The hi-lo carried the gangplank between its fork and shoes pushing it along the platform. It could barely raise it off the platform. The end of the platform of the barge on which the hi-lo was working sloped from 4 feet to 3 feet in a 6-foot distance so that the hi-lo could not go past the top of the slope and approach close to the edge without toppling over. The attempts to bridge the barges with the gangplank by the use of the hi-lo and the 3 men were unsuccessful so 4 additional men were sent for. Three of the men then got on one side of the open end of the gangplank and four on the other and again along with the aid of the hi-lo they attempted to lift and guide the gangplank. The hi-lo would advance and push the gangplank and then attempt to lift it. However, the machine and men working together could not lift the gangplank to a height sufficient to get it over the edge far enough to bridge the gap between the two barges so after each attempt they would lay it down again. Each time the hi-lo would pitch forward and the back wheels would rise. Then the hi-lo would back up to get more leverage and make another attempt. Finally the gangplank was laid across so that it barely lay on the edge of the platform on the opposite barge. It lay there for a few seconds and then slipped off . This occurred because it was only 2 inches over the edge of the barge platform and it fell before the men could secure the 4 ropes attached to it to the barges which would have been done if it had been placed in its proper position. At the time the wind was very high--about 25 miles an hour; the barges were bobbing up and down in the water and swinging from side to side. In falling, the gangplank struck plaintiff's leg, knocking him down and pinning him under it. The procedure before the accident was for the hi-lo to push the gangplank, lift it, then to back up and push again.
The Court is satisfied from the proof that it was the usual practice of plaintiff's employer--Seaboard--to use a hi-lo in placing gangplanks across barges and that Erie had knowledge of that practice. Plaintiff had previously worked on a gangplank of the same size and the same practice was followed but most of the time the gangplank did not have steel plates. The gangplank used on the day of the accident was about 6 feet wide and 12 feet 6 inches in length and although there was no proof as to its weight it is undisputed that the hi-lo could barely get it off the platform.
It was stipulated by the parties that all of the hi-los on the pier were of the same weight-carrying capacity as the one used in this case and that they were not of sufficient capacity 'without men assisting on the side of the gangplank' to lift and move the gangplank.
Under its contract with Seaboard, defendant was required to furnish 'such freight handling equipment, such as trucks, gangplanks, tractors, trailers and other equipment, as may be necessary for the proper, expeditious and efficient handling of freight.' Defendant further agreed in its contract with Seaboard that it would 'upon demand * * * furnish * * * such additional freight handling equipment and appliances as may be necessary.'
Though defendant supplied the hi-lo it was Seaboard that devised the shoes on the fork lift of the hi-lo and the method of lifting and carrying the gangplanks at one end. Defendant had knowledge that for several years Seaboard had engaged in that practice.
Concededly, the method thus used by Seaboard, to bridge the two barges, was not the only method which could be used.
A photograph in evidence demonstrates that a gangplank can be lifted and held at one end by the fork and shoe of a hi-lo at a height of about 7 feet above and parallel to the ground. However, the gangplank used at the time of the accident was considerably heavier than the one portrayed in the photograph and it therefore caused the hi-lo with its two-ton limited weight-lifting cacacity, to tilt forward with its rear wheels off the ground and in the air.
Thus, the failure of defendant to supply a hi-lo of greater weight-lifting capacity than two tons was at least a concurring proximate cause of the accident, and I so find as a fact.
It is plaintiff's contention that by such failure defendant violated the nondelegable and absolute duty owed by it to plaintiff under maritime law of supplying appurtenances reasonably adequate for their intended use and that that failure rendered the defendant's barges unseaworthy as a matter of law. Defendant in its brief says: 'It is defendant's position that there can be no liability whatever on its part to the plaintiff for the reason that all equipment, the car floats, the manner of doing the work, the supervision of the work, the direction of the work and all details of it, had, by the contract, been left to Seaboard.'
Since the accident occurred while the defendant's vessels were in navigable waters, the substantive Federal Maritime Law is exclusively applicable to the issue of liability. (Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143). An analysis of the substantive law on the subject as evolved by decisions in the Federal Courts demonstrates the plaintiff's right to recover and the invalidity of defendant's contention.
The doctrine of seaworthiness is based on an admiralty doctrine of breach of warranty and not of negligence. It imposes on the shipowner an absolute duty to maintain a vessel in a seaworthy condition and to supply appurtenances adequate and sufficient for the occasion. (Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 159 S.Ct. 262, 83 L.Ed. 265)....
To continue reading
Request your trial