Wong Bar v. Suburban Petroleum Transport, 220.

• Decision Date: 19 May 1941
• Docket Number: No. 220.,220.
• Citation: 119 F.2d 745
• Parties: WONG BAR v. SUBURBAN PETROLEUM TRANSPORT, Inc.
• Court: U.S. Court of Appeals — Second Circuit

119 F.2d 745 (1941)

WONG BAR v. SUBURBAN PETROLEUM TRANSPORT, Inc.

No. 220.

Circuit Court of Appeals, Second Circuit.

May 19, 1941.

Abraham M. Fisch, of New York City, for appellant.

Mahar & Mason, of New York City (Frank C. Mason and Edward L. P. O'Connor, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

The appellant, a Chinaman who was employed as cook on the defendant's tugboat, sustained personal injuries while attempting to leave the vessel on the afternoon of May 19, 1940. His action under the Jones Act, 46 U.S.C.A. § 688, is predicated on the theory that his injuries resulted from the negligence of a fellow servant. The tugboat was lying at the dock in a Staten Island shipyard for engine repairs. Pursuant to prior instructions, the appellant reported for work on May 19th and after going on board was told by the engineer in charge of the tugboat in the captain's absence, that no work was required of him and he was free to go home, as the repairs were not completed. The engineer gave similar instructions to a deckhand named Seabrook, who had also come aboard to report for work. Seabrook and the appellant started to leave the boat together. To leave the boat it was necessary to get on the deck of a barge lying at the stern of the tugboat and then to pass from the barge to the dock. Seabrook jumped from the deck of the tug to the deck of the barge, which was four feet higher than the stern of the tug; but the appellant, who weighed 225 pounds, picked up a six-foot ladder which he put against the barge. Seabrook held the ladder for him; it projected between six inches and a foot above the deck of the barge. Seabrook's testimony as to the accident is as follows: "Wong Bar proceeded up the ladder. After he got in the neighborhood of two-thirds of the ladder I let go of the ladder to let him step to the barge. The ladder fell. Wong Bar fell with the ladder. He fell to the starboard stern of the tug." Seabrook did not warn Wong Bar that he was going to let go of the ladder. There was testimony that a twelve-foot ladder was available if the appellant had cared to get it, but the shorter one was nearer. The short "ladder", however, was never meant for the purpose to which the appellant put it; it was the set of steps from the deck to the engine room temporarily removed and left lying about while repairs were going on. At the conclusion of the evidence the District Court directed a verdict for the defendant, stating that there was no evidence of negligence on the part of the defendant.

It is obvious that Seabrook would have to stoop to hold the ladder and would have to get out of the way to enable Wong Bar to step from the ladder to the deck, but it is not apparent to us that in order to get out of the way he would necessarily have to let go of the ladder. It would seem to be physically possible for him to have moved to one side, without wholly relinquishing his hold, so as to allow Wong Bar to step off on the other side. At least we think it was a question for the jury whether he acted with reasonable care under the circumstances. Hence the direction of the verdict can be sustained only if Seabrook's acts are not imputable to the defendant.

It is urged by the appellee that such is the case because Seabrook was not acting within the scope of his employment at the time of the accident. We cannot accept this...