Thorneal v. Cape Pond Ice Co.

• Decision Date: 02 July 1947
• Citation: 321 Mass. 528,74 N.E.2d 5
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WILLIAM THORNEAL v. CAPE POND ICE COMPANY & another.

321 Mass. 528

74 N.E.2d 5

WILLIAM THORNEAL v. CAPE POND ICE COMPANY & another.

Supreme Judicial Court of Massachusetts, Essex.

July 2, 1947

April 10, 1947.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Harbor Worker. Admiralty. Negligence, Toward harbor worker; Ice chute Employer's liability: harbor worker, appliance, ice chute, Jones act, Federal longshoremen's and harbor workers' compensation act. Jurisdiction, Maritime matters, State courts. Actionable Tort. Practice, Civil Exceptions: whether error shown. Error, Whether error shown. Words, "Seaman."

Evidence of the circumstances in which the fingers of a harbor worker employed on a vessel were caught and injured on a metal chute which he was using in conveying ice from a building on a wharf into the hold of the vessel warranted findings that the method of construction of the chute was defective and dangerous, that the worker did not know of such condition and was not warned of it either by his employer, the owner of the vessel, or by the ice company owning and furnishing the chute, that both the owner of the vessel and the ice company knew or ought to have known of such condition, and that each of them was negligent toward the worker.

Negligence of an ice company, in furnishing a defective chute which caused injury to a casual harbor worker when used by him on a vessel lying at a wharf in navigable water in the course of his employment by the owner of the vessel to assist in conveying ice from a building on the wharf into the hold of the vessel was a maritime tort governed by the maritime, not by the State, law, but an action at law for such tort might be maintained against the ice company in a State court.

Under U. S. C. (1940 ed.) Title 33, Section 905, a failure of the owner of a vessel "to secure payment of compensation as required by" the Federal longshoremen's and harbor workers' compensation act entitled a harbor worker casually employed by him, upon being injured through his negligence while at work on the vessel in navigable water assisting in the conveyance of ice through a chute from a building on a wharf into the hold of the vessel, at the worker's election to maintain an action at law against the employer under the Jones act, U. S. C. (1940 ed.)

Title 46, Section 688.

Denial of a motion by the defendant for a directed verdict in an action against the owner of a vessel by an injured employee of his under the

Jones act, U. S. C. (1940 ed.) Title 46, Section 688, was not shown to be error on the alleged ground that under Section 905 of U. S. C. (1940 ed.) Title 33, the plaintiff's exclusive remedy was under the Federal long-shoremen's and harbor workers' compensation act, where the record before this court contained nothing to show whether or not the defendant employer had secured payment of compensation within the exception in said Section 905 so that the employee would be precluded from exercising the election, therein provided, to proceed by an action at law.

The owner of a vessel lying at a wharf in navigable water was not liable under the maritime law for maintenance and cure of a casual harbor worker in his employ who was injured while working on the vessel assisting in the conveyance of ice from a building on the wharf through a chute into the hold of the vessel.

TORT. Writ in the Superior Court dated August 31, 1944. The action was tried before Broadhurst, J.

J. Z. Doherty, for Cape Pond Ice Company. J. F. Mirley, for the defendant Linquata.

A. L. Kaplan, for the plaintiff.

QUA, J. On July 1 1944, the plaintiff, a fisherman by trade but not at that time employed, was hired by the master of a fishing vessel owned by the defendant Linquata to "ice up" the vessel with crushed ice to be supplied by the defendant Cape Pond Ice Company at its wharf in Gloucester. On that same day the plaintiff, while upon the vessel, which was in navigable water at the wharf, and, while using an iron chute owned by the defendant Cape Pond Ice Company to convey the ice into the hold of the vessel, was injured, as he contends, by a defect in the chute.

The declaration is in four counts. Count 1 is against the defendant Cape Pond Ice Company alone. This count alleges that that defendant furnished the chute, and that the chute was in a dangerous and defective condition and was unsuitable for the safe and proper performance of the work. Both parties involved in this count treat it as a count treat it as a count for negligence causing injury, and no question of pleading in reference to it has been raised. Counts 2, 3, and 4 are each against the defendant Linquata alone. Count 2 alleges the employment of the plaintiff by that defendant as a seaman, the duty to supply suitable and safe appliances, and negligence of the defendant causing injury. This count expressly states that it is under the Jones act, U. S. C. (1940 ed.) Title 46, Section 688, which in its present form was originally enacted by Section 33 of the merchant marine act of 1920, 41 U.S.

Sts. at Large, 1007.

Count 3 is for maintenance, care, and cure. This count alleges the employment of the plaintiff as a seaman on the defendant Linquata's vessel and the plaintiff's injury while in the performance of his duties. Count 4 alleges simply negligence of the defendant Linquata, his agents or servants, causing injury to the plaintiff and says that it is for the same cause of action as count 2. For authority to join in a single action counts against several defendants see G. L. (Ter. Ed.) c. 231, Section 4A, inserted by St. 1943, c. 350, Section 1.

There was a verdict for the plaintiff on each count. The only exceptions before us are those of the respective defendants taken to the refusal of the judge to order a verdict for each defendant upon each count. We consider only the questions whether it was right to submit each of the counts to the jury.

There was evidence of the tenor following. The crushed ice flowed by gravity from an aperture in the side of a building on the wharf through an enclosed tubular chute to the vessel. From the lower end of the enclosed chute one or more open chutes resembling those used in delivering coal were so placed that the ice would flow to the desired parts of the vessel. The plaintiff was handling the last chute so as to direct the final flow of the ice. He put this chute into the main hatchway lengthwise of the vessel, so that the lower end of the chute was resting in the hold and the upper end extended out five or six inches beyond the coamings on the forward part of the main hatchway near where the plaintiff stood. This chute had been lying on the deck alongside the hatchway. The master had told the plaintiff that this was a chute to put in the hatchway. When the plaintiff had got "so much" ice in he "had to pull the chute toward him" and to arrange the lower end a little higher so that the ice would flow farther into the hold. At the upper end of the chute there was an iron bar or bail attached to a pivot at each side of the chute in such a manner that the bar would swing around over the end of the chute as the bail of a pail swings over the top of the pail, except that, instead of extending around the end of the chute in a semicircular form, as the bail of a pail commonly extends over the top of the pail, this bar was straight from side to side of the chute and was bent at right angles near its point of attachment at each side of the chute. There was evidence that in swinging it would clear the ends of the sides of the chute by about an inch. The bar was used to hold the chute to the chute next above it in the chain of chutes. It was also available as a handle to raise or adjust the chute to which it was attached. The plaintiff testified that when he started to pull the chute out to readjust it he held this bar in his hand; that when he pulled the chute up the bar "went down" and a clamp located under the bottom of the chute "snapped up" and caught his fingers; that this clamp worked on the bar; that when the bar turned back that caused the clamp to snap up and catch his fingers; and that when he moved the bar, the bar went down and the clamp came up on the bottom of the chute and caught his fingers. There was evidence from the master of the vessel that the chute was "the same chute that was always used." The plaintiff further testified that he was a lumper and was not a member of the crew.

From a reading of the record and an examination of photographs of a chute which was conceded to be generally similar to the chute in question we find it difficult to believe that the accident happened by the closing of a clamp as the plaintiff contends it did. The plaintiff's testimony contains inconsistencies and was more or less shaken on cross-examination. It seems to us more probable that the plaintiff's fingers were caught between the bar and an angle iron which appears to have been bolted or riveted transversely under the bottom of the chute and across its entire width at its upper end in order that the chute might be prevented from slipping from the cap log of the wharf or from the coamings of a hatchway. It would seem possible that the plaintiff's fingers might be caught in this way if there was insufficient clearance between the bar or bail, as it came around the end of the chute, and the longitudinal half of the angle iron next to the bottom of the chute. However that may be, there was abundant evidence that the plaintiff's fingers were actually caught at the upper end of the chute and injured, and we cannot say as matter of law that the jury could not accept the plaintiff's story of a clamp that moved with the bar and caught his fingers. If they believed this, they could find, we think, that there was a defect in the method of construction of the...