24 F.2d 963 | 2d Cir. | 1928
JOHNSON
v.
UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.
Circuit Court of Appeals, Second Circuit.
Silas B. Axtell, of New York City (Myron Scott, of New York City, of counsel), for plaintiff in error.
William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Edgar G. Wandless, and Frederick H. Cunningham, both of New York City, of counsel), for defendant in error.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
PER CURIAM.
This action was brought to recover for personal injuries sustained by the plaintiff in error, who said he was an invitee seeking employment as a ship's carpenter on one of the defendant in error's boats, and was injured while walking on a gangplank, which he claimed was not firmly in place. The jury found against him on the issue of negligence.
The plaintiff in error assigns error for the charge of the court, which instructed the jury that, if the plaintiff in error was guilty of contributory negligence, he could not recover. The plaintiff in error now argues that this was a maritime tort, and that the maritime law controls, and therefore the contributory negligence was not an absolute bar to *964 a recovery. We think the court correctly instructed the jury, under the authority of Belden v. Chase, 154 U.S. 674, 14 S. Ct. 264, 37 L. Ed. 1218, Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619, and Maleeny v. Standard Shipbuilding Co., 237 N.Y. 250, 142 N.E. 602. We have not overlooked the Castagna Case (C. C. A.) 280 F. 618, where, in a dictum, it was inadvertently stated the rule is different than stated in Belden v. Chase, supra.
Judgment affirmed, with costs.