Vanderlinden v. Lorentzen
| Decision Date | 12 January 1944 |
| Docket Number | No. 160.,160. |
| Citation | 139 F.2d 995 |
| Parties | VANDERLINDEN v. LORENTZEN et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Edgar R. Kraetzer, and Haight, Griffin, Deming & Gardner, all of New York City (J. Ward O'Neill, of New York City, of counsel), for Lorentzen.
Patrick J. McCann, of Brooklyn, N. Y., and E. C. Sherwood, of New York City, for Turner & Blanchard, Inc.
Abraham M. Fisch, of New York City, for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
This is an appeal by both defendants from a judgment for the plaintiff for personal injuries suffered by the breaking of a ship's ladder (Jacob's ladder) leading over the side of the ship to the deck of a lighter alongside. The jury found both defendants liable, but awarded indemnity in favor of one of them, the stevedore, against the other, the shipowner. In substance, the appeal is therefore only by the shipowner, because, although the stevedore also appeals from the judgment, it needs no more for its protection than to preserve that part of the judgment which awarded indemnity against the shipowner. The cause was tried to a jury which brought in a (the stevedore). The shipowner raises upon this appeal (1) the absence of evidence to support a finding of negligence against him; (2) that, even if he could properly be held negligent, the provision for indemnity was wrong; and (3) that in any event, the judge was wrong in allowing the jury to consider evidence of a custom for stevedores not to examine ladders furnished by the ship. The stevedore appeals on the ground that the evidence did not support a finding of negligence against it.
From the evidence the jury might have found the following facts. Vanderlinden, the plaintiff, was a "checker" in the employ of one, Jansen, whom the stevedore had employed to check the cargo which was to be discharged from a lighter of the Delaware, Lackawanna & Western Railroad and laden upon Lorentzen's ship, alongside of which the lighter had been made fast. Jansen billed the stevedore for the checking service, and the stevedore passed on the charge to Lorentzen. When Vanderlinden went to work on the lighter, he crossed the deck of the ship from the pier where she lay, and started down a Jacob's ladder which the stevedore's foreman, Ristuccia, and some fellow employees had just put over the ship's side to reach to the deck of the lighter. This ladder belonged to the ship, but the ropes were thoroughly rotten and altogether unfitted to bear a man's weight. As soon as Vanderlinden had gone down a step or two, it broke and he fell to the deck of the lighter, suffering extremely severe injuries. Ristuccia had asked Wathne, the ship's second officer, for a Jacob's ladder to put over the ship's rail, and was told that he would find one on the boat deck. Ristuccia said that Wathne spoke of only one ladder; Wathne, that he told Ristuccia that there were four. Wathne also testified that in fact there were four, three of which were sound, but the fourth unfit, and that this one had been rolled up and put aside under the water tank. Ristuccia said that he saw only one. If there were four, the ladder that he took was the rotten one, and concededly Wathne did not tell him to avoid any one of the four. While Ristuccia was fastening one end of the ladder to the ship's rail, and as he let it unroll over the side, he did not notice its condition; nor did he examine it after it was in place. His excuse was that there was a custom for stevedores to rely upon the ladders furnished by the ship, and not to examine them.
The judge charged the jury that it was the stevedore's duty to furnish the plaintiff with a "safe mode of access to work" and that "the measure" of it was the "foreseeability of danger, and what a reasonable man * * * would do." He also charged them that the shipowner was also liable unless, — assuming that there were four ladders — he had put the unfit one reasonably beyond access by Ristuccia. If there was only one, they might find the shipowner negligent without more. In specification of the stevedore's liability he said that if "an ordinary look at the coiled ladder * * * would have put a reasonable man on notice that the ladder...
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