United States v. Smith, 14726.

• Decision Date: 31 March 1955
• Docket Number: No. 14726.,14726.
• Citation: 220 F.2d 548
• Parties: UNITED STATES of America, Appellant, v. Charlie SMITH, Administrator of the Estate of Jefferson Smith, Deceased, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

220 F.2d 548 (1955)

UNITED STATES of America, Appellant, v. Charlie SMITH, Administrator of the Estate of Jefferson Smith, Deceased, Appellee.

No. 14726.

United States Court of Appeals, Fifth Circuit.

March 31, 1955.

Robert Eikel, Brian S. Odem, U. S. Atty., C. B. Smith, Asst. U. S. Atty., Houston, Tex., Malcolm R. Wilkey, U. S. Atty., Royston & Rayzor, Houston, Tex., for appellant.

Arthur J. Mandell, Houston, Tex., Mandell & Wright, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This action by the administrator for the benefit of the parents and dependents of Jeff Smith, deceased, was brought under the Jones Act, 46 U.S.C.A. § 688, as well as under the admiralty law for unseaworthiness.¹

A day or two before September 5, 1946, the S. S. Albert G. Brown had docked at the Standard Oil docks, a finger pier, at Norfolk, Virginia. For ingress and egress the vessel was using an upright wooden, runged ladder, like a carpenter's or painter's ladder. This was lashed at the upper end to the ship's rail with a small line, made of hemp. The lower end rested on the dock. The ship was to sail on September 5, and to check the engines they were run or "rocked". This moved the ship slightly, and either this movement or this movement coupled with the wake of a passing vessel or the tide caused the vessel's head spring line to part. The vessel swung away from the dock, and the ladder was pulled off the dock. It hung suspended, flat against the vessel's side, held only by the light lashing. The decedent, Jeff Smith, and other seamen returned to the vessel from shore leave at about this time and saw the ladder hanging against the ship's side. Smith started to climb the ladder, the lashing broke, the ladder with Smith upon it fell between the side of the ship and the dock, and Smith was instantly killed or drowned.

The district court held that the vessel was unseaworthy, that those in charge of her were negligent,² that Smith was not negligent,³ and awarded the administrator of the decedent's estate damages in the amount of $16,933.00.⁴ The opinion of the district court, apparently not reported, covers some thirteen pages of the record, and only its ultimate findings have been quoted in the margin (Footnotes 2, 3 and 4, supra).

Appellant insists that the district court erred in holding the vessel unseaworthy, and those in charge negligent, in not holding Smith negligent and his negligence the sole proximate cause of his death; or if not the sole cause, in not holding that in any event the greater amount of damages should be disallowed under the rule of comparative negligence, and, finally, that the damages were excessive and contrary to the undisputed evidence.

On the issues of unseaworthiness and negligence vel non, appellant's contention is that it had not been afforded a reasonable opportunity to correct the broken spring line and to replace the ladder before the accident occurred, that the defect developed suddenly, without an opportunity to correct it. A careful reading of the record, together with an examination of part of the frayed and broken cord forwarded as an exhibit, lead us to the opinion that this contention is wholly unfounded, and that it has been adequately answered in the opinion of the district court, 121 F.Supp. 778.⁵

Appellant's main reliance seems to be on the proof tending to show that Smith was negligent. Smith was twenty-nine years old at the time of his death. He had served in the Navy for six years, and had been in the Merchant Marine aboard this same vessel for about ten months before his death. The dockmaster at this wharf testified that he warned Smith against climbing this ladder. In a statement given shortly after the accident, he had said in part: "The negro was very black and had on a blue cap with a gold `C' on it and a white shirt and blue pants. I am satisfied it was the man I warned as there were no other negroes on the dock at that time of the morning." In his deposition introduced into evidence, he testified that "* * * I think he had a cook's cap on, if I am not mistaken." All of the other witnesses present testified that Smith had on a white hat. In his deposition, the dockmaster testified: "Well, that morning I was standing on the dock there, I was talking to two young fellows there, and then several colored fellows came up * * *." According to his previous statement, and according to the other witnesses, Smith was the only negro present. Further, the dockmaster evidenced obvious confusion and unreliability of observation when he testified differently from all other witnesses that the vessel was about forty or forty-five feet out of the water, that "he didn't remember when they switched from the ten or twelve foot ladder to the sixty foot ladder," that the sixty foot ladder sometimes stuck twenty-five feet above the ship's rail, that it weighed "somewhere around two hundred fifty to three hundred pounds, and that no living man could handle it," that the vessel veered away from the dock a distance of eighteen feet (the other witnesses placed that distance at about six feet). The dockmaster's further efforts to identify Jeff Smith as the person he had warned,⁶ as well as his efforts to free the respondent from responsibility,⁷ go far to convince us that no reliance can safely be placed on his testimony.

The dockmaster testified that he had walked away before the accident occurred. The only eyewitness offered by the respondent was Richard Oliver, a nineteen year old member of the ship's crew at the time of the accident. Oliver testified that he had started to go up the same ladder and that Smith had warned him not to do so, to wait.⁸ In response to questions by the court, Oliver further testified that the ship with the ladder had moved closer to the dock when Smith attempted to climb it.⁹

Oliver had been employed as radio operator on the Albert G. Brown. James D. Burnett, an eyewitness introduced by the libellant, viewed the scene from the rail of the vessel, witnessed Smith's warning to Oliver, and testified that, when the vessel moved closer to the dock and Smith started climbing the ladder, he, the witness, thought the ladder was safe.¹⁰ The libellant introduced Captain William Pritchett who qualified as an experienced seaman and testified that seamen often climb such ladders.¹¹ The testimony of William Martin Miller and that of Franklin G. Gustafson were to like effect. Gustafson testified that he had seen "in the neighborhood of fifty or one hundred" instances "* * * where seamen would climb a straight up and down ladder lashed to the side of the vessel and hanging down from the side without resting on anything".

The burden rested upon the respondent reasonably to satisfy the district court that the deceased Smith had been guilty of contributory negligence. United States v. Fotopulos, 9 Cir., 180 F.2d 631, 637. The district court saw and heard many of the witnesses testify orally. The scope of review here is only as to whether the findings of the district court are clearly erroneous. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6; C. J. Dick Towing Co. v. The Leo, 5 Cir., 202 F.2d 850, 854. In our opinion, there was ample evidence to support the district court's finding that Smith was not negligent.

Appellant insists that the only reasonable loss of support by Smith's parents was "somewhere in the neighborhood of $50.00 per month," instead of $100.00 per month as found by the district court, and the appellee maintains, to the contrary, that the evidence could have well supported a loss of $200.00 per month. Both his mother and father were old and in bad health. While Smith was in the Navy, he made a monthly allotment to his parents of $37.00, and sent other money in letters, $30.00, $40.00, and sometimes as high as $100.00. His professed purpose in joining the Merchant Marine, communicated to his parents and their friends, was "because he believed he would be more able to help us, and he wouldn't have his clothes and his food to buy, and that is why he would be able to give more support to us." At the time of his death, Smith's basic wages in the capacity of First Cook were $205.00 per month, in addition to which he received sustenance and overtime. By the time of trial, the basic monthly wages of a chief cook had been raised to $300.00. His contributions to his parents were generally sent in currency because of the inability of his parents to read and write. The mail was delivered in a box used also by some of their neighbors who would read his letters to his parents. Several of his letters are forwarded as exhibits. Two of the neighbors and his father testified in substance that the money would come usually twice a month, and in such amounts as $30.00, $40.00, $50.00, $75.00 and $100.00. We cannot say that the district court's finding of loss of support by the parents in the amount of $100.00 per month was clearly erroneous. The judgment is

Affirmed.

1 Appellant does not contest that an action for unseaworthiness may be joined with an action for negligence under the Jones Act. See McCarthy v. American Eastern Corporation, 3 Cir., 175 F.2d 724, 727.

2 "Libellant's charges of negligence by the Steamship and those in charge of her are well founded, and I find they were negligent as follows, which negligence proxmately caused the injury to and death of Smith:

"In that Jeff Smith was not provided with seaworthy lines and/or attachments so that the ladder would be safely attached or tied on to the railing of said vessel.

"In that the lines with which the ladder was attached to the railing were not strong enough to hold up the weight of a person while climbing said ladder, and especially Jeff Smith.

"In that the lines which held up said ladder to the railing of said vessel were old, rotten, and otherwise defective thus creating a dangerous condition to anyone climbing said...