350 Mass. 470 | Mass. | 1966
The plaintiff, employed as an engineer on the defendant’s fishing vessel, brings this action in two counts,
For a year prior to his injury, which took place on May 30, 1962, the plaintiff had been a member of the crew of the Ocean Wave (the vessel). He had approximately twenty-five years of service as an engineer on fishing vessels. When he first went aboard the vessel he reported to the captain that there were salt water leaks in the trunk of the pilot house causing rust and corrosion to affect the engine and clutch. Later he reported the worsening of the condition to the captain. In March of 1962 a welder examined the steel trunk and found that it was rusted through by salt water deposits from leakage of possibly longer than three months. He told the captain that extensive repairs were required. No repairs were made.
On May 30,1962, in order to time the engine the plaintiff undertook to remove a plate which was attached by six bolts to the clutch housing. He chipped rust and salt from the bolts and plate and thereafter, exerting considerable force in the use of a socket wrench, removed five bolts. The plaintiff was working on the sixth and last bolt when the head of the bolt sheared off, causing him to fall and sustain injury. He noticed that the threads in the holes in the clutch housing were eaten by salt.
The second count, based on the unseaworthiness of the vessel, involves general maritime law which is to be applied according to Federal principles. See Keough v. Cefalo, 330 Mass. 57, 60. Although unseaworthiness is technically a nonjury admiralty cause of action, in a jury case the issue may be submitted to the jury when joined with an issue arising from the same facts under the Jones Act. Fitzgerald v. United States Lines Co. 374 U. S. 16, 18. Applying Federal principles here, we think the issue of unseaworthiness of the vessel should have been submitted to the jury (Jenkins v. Roderick, 156 F. Supp. 299 [D. Mass.]) as a ground for recovery alternative to negligence under the Jones Act. McAfoos v. Canadian Pac. S.Ss. Ltd. 243 F. 2d 270 (2d Cir.).
A shipowner has an absolute duty to furnish a seaworthy ship. Mitchell v. Trawler Racer, Inc. 362 U. S. 539, 549. For recovery it is not essential that the ship be proved totally unseaworthy; it is sufficient if it is proved unsea-worthy with respect to the person injured. McAllister v.
It is true, of course, that the jury could find that the extraordinary effort made by the plaintiff to remove the last bolt constituted negligence on his part. If this merely contributed to his injury, it would, at most, operate in mitigation of damages under the Federal law here applicable under either count. Keough v. Cefalo, 330 Mass. 57, 62. See Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 431. It is conceivable that the jury could find overexertion by the plaintiff to be the sole cause of his injury. This does not justify a directed verdict. That a case may be close and a jury may find either way “is no reason for a court to usurp the function of the jury.” Jacob v. New York City, 315 U. S. 752, 756. Keough v. Cefalo, 330 Mass. 57, 61, and cases cited. There was error in directing a verdict on each count for the defendant here.
Exceptions sustained.
A third count, for cure and maintenance, is not before us.