Zinnel v. United States Shipping Board EF Corporation

• Decision Date: 07 December 1925
• Docket Number: No. 102.,102.
• Citation: 10 F.2d 47
• Parties: ZINNEL v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

10 F.2d 47 (1925)

ZINNEL v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

No. 102.

Circuit Court of Appeals, Second Circuit.

December 7, 1925.

Charles Warren Hastings, of New York City, for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn (Edgar G. Wandless and Joseph M. Dreyer, both of New York City, of counsel), for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The refusal of the court to allow the photograph in evidence for the purpose offered was erroneous. It was not necessary that the witness who took it should swear that it was correct at the exact moment of the accident, when he was not present. If it represented the truth in the morning, a few hours before, and at once after the accident, the jury was entitled to assume that there had been no change in the interim. It was, moreover, admissible to contradict the testimony of the master and the mate that the lines were kept standing through the whole voyage, which it very effectually did. Not only was the plaintiff entitled to go to the jury upon the question whether the lines were standing at the time, assuming that to be relevant, but it is very hard to see how the jury could have reached a verdict for the defendant upon that issue. The learned judge was certainly in error in taking the case from the jury.

The question of law remains, whether the absence of the line was a default in the defendant's duty to exercise reasonable care to furnish the decedent with a reasonably safe place to work. Upon this we might accept the testimony of the master and the mate themselves as sufficient evidence, for they swore that the lines were kept standing throughout the voyage, for the purpose of protecting seamen when passing across the deck load. Nor can we see how, in the absence of such proof, there can be much doubt about the necessity of some such guard. The deck load in effect raised the well deck to the level of the forecastle head, and left no protection of any sort. Without some guard line we need no expert to show us that a case was presented, which a jury must decide, as to the safety of the place where the intestate was ordered to work. Indeed, it seems to us hard to see how a jury could find for the defendant on this issue, as well as on the issue of the absence of the line.

The cause arises in substance under the Employers' Liability Act (Comp. St. §§ 8657-8665), since that is incorporated by reference. It is therefore quite unnecessary to say that the ship was unseaworthy, at least in the ordinary sense, which makes the commencement of the voyage the test. The act has made applicable to work at sea the same rules which protect work on shore, and the shipowner is as liable for the faulty use by the crew of proper apparatus as though the ship were unseaworthy in equipment when she broke ground. This was in effect ruled in Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748, where one of the faults was in the negligent use of apparently sound equipment. We therefore decline to engage in any discussion as to seaworthiness, beyond, indeed, observing that the term has itself the most relative meaning (The Silvia, 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U. S. 1, 9...