Wiper v. Erie Sand Steamship Co.
| Decision Date | 09 August 1961 |
| Docket Number | No. 329,Docket 26409.,329 |
| Citation | 293 F.2d 491 |
| Parties | Elsie C. WIPER, Executrix of the Estate of Joseph W. Wiper, Deceased, Plaintiff-Appellant, v. ERIE SAND STEAMSHIP CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Victor G. Hanson, Detroit, Mich. (Harvey Goldstein (of Goldstein & Sterenfeld), New York City, on the brief), for plaintiff-appellant.
Fenton F. Harrison, Buffalo, N. Y. (Coffey, Heffernan & Harrison, Buffalo, N. Y., on the brief), for defendant-appellee.
Before WATERMAN, MOORE and SMITH, Circuit Judges.
Plaintiff, executrix of the estate of Joseph W. Wiper, brought this action pursuant to the Jones Act (46 U.S.C.A. § 688) to recover damages resulting from the death of her husband allegedly caused by the negligence of the defendant or the unseaworthiness of defendant's vessel, the M/V "Hydro" (Hydro). The jury returned a verdict for the defendant, and from the judgment entered thereon, plaintiff appeals. The appeal is based primarily on contentions (1) that the trial court erroneously refused to submit to the jury certain instructions requested by plaintiff and (2) that that court erroneously charged that the condition of the dock area could not be attributed to defendant. Appellant also urges that the captain of the "Hydro" was under an affirmative duty to detain Wiper on board because of indications that Wiper had been drinking.
On September 15, 1958, the Hydro was being repaired in a slip adjoining the Detroit River, Detroit, Michigan, at a dock owned and operated by the Great Lakes Engineering Works (Great Lakes). The repair work was being performed by Great Lakes. On the afternoon of the 15th, Wiper, acting Chief Engineer of the Hydro, had been drinking, and defendant's Marine Superintendent stated that between 4:00 and 5:00 p. m. he ordered Wiper to "get himself straightened out and get some sleep." At approximately 8:00 p. m., an employee of Great Lakes asked McLaughlin, an oiler on the Hydro, to obtain an oil seal for a thrust bearing needed in the repair of the ship's machinery. McLaughlin, searching for Wiper, found him asleep. After having been awakened by McLaughlin, Wiper dressed in street clothes and announced that he would go ashore to the Great Lakes' machine shop to check on the missing part. The captain of the Hydro met Wiper on deck, and after noting the heaviness of Wiper's speech and the odor of alcohol on his breath, asked Wiper not to go ashore. Disregarding this request, Wiper proceeded along the deck, descended the ship's ladder, proceeded on shore away from the ship, recognized a fellow member of the crew who was returning to the ship, and was observed as walking without stagger or assistance. His body was found in the slip on September 19, 1958. An autopsy revealed that the date of death was September 16th; that the cause of death was "asphyxia by drowning"; and that Wiper's blood alcohol content was .35% — an amount which, according to an expert called by defendant, would have produced such a stuporous or nearly comatose state that an individual would need assistance in such simple acts as dressing and walking.
The issues of negligence and unseaworthiness were submitted to the jury on the basis of conflicting evidence concerning the condition of the ladders used for boarding and leaving the Hydro. On this appeal plaintiff does not challenge the sufficiency of the evidence to support defendant's verdict, but as stated claims that the trial judge erred in refusing to charge certain of the submitted requests.
A comparison of these requests with the actual charge given leads to the conclusion that no error was committed. Request No. 15 was to the effect that "the words `in the course of his employment' as used in the Jones Act is sic not restricted to death or injury occurring on navigable waters but may include injuries or death occurring while returning to the vessel, providing the accident happened while in the performance of his duties of employment." The judge charged that "it would not matter that the death occurred while he Wiper was not on the `Hydro' itself." Requests 19, 22 and 23 all concerned the shipowner's liability when an accident is partially...
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Wiper v. Great Lakes Engineering Works
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