22 F.2d 488 | 2d Cir. | 1927
(after stating the facts as above). It seems difficult to account for the accident to the plaintiff, if the stanchions were securely held in their sockets by cotter pins. The weather was rough, but we find nothing in the record to show that it was very extraordinary. The wave which struck the plaintiff and swept him against the chain rail came from the other side of the ship, and would almost inevitably be somewhat broken in force before it reached him. It seems difficult to suppose that such a wave, when striking the chain rails and stanchions, even with the added weight of the plaintiff accompanying it, would exert sufficient force to lift the stanchions out of their sockets, if the cotter pins had been in place. It is to be noted that the only testimony about the stanchions themselves shows that they were not bent and were immediately replaced in their sockets. Therefore they must have been lifted, and not pried out, by the force of the wave, for in the latter case they would almost surely have been bent.
The testimony of the plaintiff that he found one or two stanchions out of their sockets, half suspended on the chains, after the ship left Mobile, and replaced them, and that on three trips which he had taken upon the vessel he had observed that some of the stanchions did not have pins, tended to show a.habit of neglect to fasten the stanchions to the ship. To this was added the testimony of plaintiff’s witness Crosby that immediately -after the accident there was no cotter pin in one of the stanchions which he found out of its socket, and that he was quite sure the stanchions in general lacked pins; and the testimony of Steensnes that he removed the stanchions when No. 3 hatch was loaded at Mobile and reset them without cotter pins, and that he helped put the stanchions in place after the accident and found no pins. It is true, if the cotter pins had been in place, but were broken by the force of the wave which lifted out the stanchions, they would doubtless have been broken or bent, as some of defendant’s witnesses said was the case; but plaintiff’s witnesses found no such condition. It is clear that'the testimony offered on behalf of plaintiff, showing a habit of neglect to fasten the stanchions properly, eoupled with-the testimony that there were no pins found after the accident, raised a question for the jury as to -whether the chain rail was securely held.
Moreover, the testimony that the- force exerted upon the chain rail was insufficient to pull out the stanchions if they had been held by cotter pins, or to sheer the cotter pins, tended to render it improbable that any cot
In view of the foregoing error, it seems unnecessary to determine whether life lines should have been placed on the bridge deck, which in this case was 20 feet above the. surface of the water. Zinnel v. United States Shipping Board Emergency Fleet Corporation (C. C. A.) 10 F.(2d) 47, does not govern, for in that case there was no rail at the ship’s side; the only protection the seaman could have was from a life line. There is strong ground for the contention made by the defendant here that a proper chain rail was a sufficient protection for a seaman who had to cross a relatively short space upon a deck so high above the water, where waves sweeping the deck would not be likely to be as frequent or to have as much force as on the lower decks, where life lines are usually run. Indeed, there is reason to believe that the chain rail would have protected the plaintiff from any injury, if it had stood firm. A strong record ought to be presented to show the necessity of life lines in the situation disclosed, and it is hard to see why the plaintiff should hazard so doubtful a point, where there w'ould seem to be ample evidence to present to a jury on the issue of neglect to fasten the stanchions securely.
There is no merit in the contention that the plaintiff cannot appeal, because the judgment was entered on his motion. Three hundred dolíais were awarded to him to cover maintenance and cure, so that the judgment was partly in his favor. The mere recital that it was granted on the motion of his attorney was no acceptance of the benefit under it, that could affect plaintiff’s right to appeal. Butte & B. Consol. Mining Co. v. Montana Ore, etc., Co. (C. C. A.) 121 F. 524; In re Wood (C. C. A.) 278 F. 355.
In respect to the defense of assumption of risk, no more need he said than that a shipowner cannot avoid liability for injury to a seaman by a defective appliance, on the ground that the seaman knew of the defect. Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523; Panama R. Co. v. Johnson (C. C. A.) 289 F. 964, affirmed in 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748; Zinnel v. United States Shipping Board Emergency Fleet Corporation (C. C. A.) 10 F.(2d) 47.
The judgment is reversed, and a new trial granted.
