*2 ($3,000) a year. lars 19. That libellant *3 X. McGohey, F. of New York City John deprived wages was of from 20th said the (Tompkins, Tompkins, Boal & and Ar- July, of 1943 to the 4th of Octo- Boal, thur M. New York City, of of ber, 1943, to at the rate stated wit: $60.00 counsel), respondent-appellant. for per week. 20. ob- libellant That became SWAN, FRANK, Before CLARK and ligated following in for medical the sums -Circuit Judges. expenses of aas result said accident to Flagg, $42.00; wit: To Dr. to Larkin Dr. FRANK, Judge. $16.00; X-rays $15.00; for making total judge’s opinion The and find of result said $73.00. That of ac- ings justify facts which legal state con injuries cident and libellant was caused to appellant’s negligence. clusion as to The pain.” suffer amply supports judge the on that issue of fact. judge’s by It should be obvious now The of Law read Conclusions we will appellant’s not consider con follows: credibility tentions which relate to the of respondent “1. duty That was under a witnesses open who testified in court.1 to provide place libellant with a safe to judge correctly The computed wages the respondent 2. That its violated by lost appellee expenses. and the medical duty neglected it carelessly in change We see no reason to the amount of caused, permitted allowed and pain award suffering.2 the for grease to the said collect deck of ves- question 2. But the remains of neg- was sel. free from libellant contributory negligence. judge The held ligence. 4. That accident and result- the appellee negligent. not the This injuries ing and exclu- were caused judge correctly categorized as a “Conclu sively by reason of the of law.” For we sion have held that respondent, agent carelessness the its whether negligent or not one has been is a crew servants officers and and the “question law,” i.e., whether ‘Henry li- the 5. That vessel S. Foote.’ up he has measured a legal to standard. in sum bellant is to decree question, To answer that necessary, it is weeks, for 11 wages loss of for $660.00 first, facts, i.e., ascertain to what medical the the $73.00 and the sum do; person accordingly, or did not we incurred, $1,750.- expenses and the sum (per recently Judge Learned Hand), physical suffering and the pain 00 for judge party if a trial holds “not injuries which he sustained.” negligent” “finding is not a of fact” ‘clearly for libellant entered the decree which “we must From er unless ” Stanhope Barbarino v. S. respondent roneous.’ S. foregoing, pursuant 3 Co., Cir., order, 555 In appeals. negligent, represents keeping appeal ef- either for not one more dore “This ‘crutch,’ admiralty loop the boom over case ns in an induce to fort ‘preventer being guy’ rigged; judge’s findings disregard trial support telling get by evidence, although not Barbarino fact way conflict, testimony when the boom where Although, said, raised. as we have saw most of the heard and where point, no something made either which we have witnesses — peatedly opinion he did discuss first would not Crane said we do.” v. expressly considering Transportation Corp., al., ruled et Evans delay it which would have entailed to 155 F.2d Camp keep the boom over the Luckenbach ‘crutch’ and See S. Co. v. 223, 224; slight bell, fall, Alden chance the boom expose Shipping negligent Board, States work- United not, however, the risk. does men to “Coming then to passed upon said: appear to have There second point all, had, merits, if even the steve- is whether in to you came then, judge’s first conclusion to sustain the neg- Friday. appellee work? A. case was not the instant finding ligent, (1) have a must either slip- very spot which by. evi- judge, supported by substantial work? ped went saw when first dence, of we would be facts which slipped very spot. near Not legal conclusion obliged to that his rule place. (2) evi- non-negligence was correct plain so we ourselves could dence see When did first finding. such making reasonably you slipped? A. Between avoid fact what- finding no judge made *4 with The issue. on this ever A, you it? The “Q. When did first see cross-ex- On clear. is not spect thereto I came in first when to amination, an- appellant seems to question in different two same swered the you came to “Q. The when first ways: A. work? Yes. had “Q. say You that you is, “Q. which very oil in A. Yes. there? been you you first to saw came slipped when spot? A. All over “Q. In that Yes.” work? A. may explanation ambiguity be The of this you slip- which mean, “Q. I that, opinion, ap his as time, had it? for some been ped had consequently years is 68 pellee old and Oh, sure, some time. it might A. well age, confused —as be at that he apparently unused he court-room there? as was to see it first “Q. When interrogation, especially of on work. methods in to when come first A. pellate first, courts have no reason to defer finding, that like ,the ‘finding to decisions of first which courts of in of fact’ been a not have (cid:127) ‘dearly stance.” errone unless we must Taft, (1934) jury See Witnesses trial the in Court that in a true is of care ous.’ It given any 20: “And so necessary through it counsel and court find demanded in standard in regarded of examination and as a is situation up to struction induce witness aban to is as condusive a fact, verdict and the question; don for upon any hour two an or his habitual other it is on thought wrong expression, -rightly method of and jury and or is for a deemed— rigid conform qualified ceremonialism of a to ly to set such well be as —to procedure. strange judge. It court frequently the deci is not that But when as a standard distinguish judge, truthful witnesses are of a that .as is sion findings misunderstood, they result often that true and such between freely nervously way react in fact; such as to cre is the conclusion and they impression law,’ any ate the either that are ‘condusion reviewable evading intentionally Patterson, falsifying. strictly It is The C. W. called. so interesting 712; to account for some Motor Ford Co. things Corporation, Lighterage witnesses that do under such cir Manhattan Bushey, An cumstances. honest witness testifies The Ira ques is on examination. He direct answers That this Inc., candidly promptly appears, to right that tions and makes a we consider conflicting impression. cross-examination, care two fix standard changes. suspects appraised always be attitude must interests pro traps being laid for be are He hesi that of him. balanced: person simple tates; ponders person whose he answer to a tected, ‘spar* question; by asking activity true he seems time must be curtailed. questions pro repeated; person be be interest protests by perhaps he counsel is not also be discounted must tected may appeal invaded, fair; improbability he even that will be court Altogether only protection. contrast involves nevertheless, decision attitude direct examination fact; the end no with obvious; except choosing by be creates the is that reached be can evading withholding.” interests, one of which human two tween Longenecker, Hints On The Trial of Such choices are the sacrificed. must very (1927) says (p. 85) ap law, to them Suit and as Law stuff of Appellant following is an makes fact much of the cross-examination. confusion: illustration of protect appellee, his feet from water Kreste, sure, winches,5 “Q. Mr. ran Are which covered ship the deck of this oily condition of dunnage piece spot with where he the entire was there you described working, asserts as there ship? working on you were time available, plenty dunnage should also Why, sure. the surrounding area have covered first went You saw it danger slipping the oil. avoid the A. Yes. aboard? by his judge, questioning com- for the same entire It remained facts, that, on ments, indicated A. Who? You there? time suggestion.6 an unreasonable my partner?” mean honest, “truthful, When would water out from over-cautious” by you open type the winches? A. When “A advocate of witness: skilful may rapid winch the ruin the water come out. cross-examination *5 good testimony steam, water, so as “Q. witness Yon of such a mean would *** steam, come out? leave A. Water from the the (because yes. the of his cautious witness know, manner) vacillating does not get “Q. You wouldn’t both steam and testimony argument that his time, you? later water at the same A. ” ** * disregarded Why Of the should be not? says (p. witness,” “nervous 94): timid asking you. “Q. I am A. When the type must he “If witness this go out, winch the water come too. When thing cross-examined, then the effective operated we the winch the water come testimony by down to do is to break out too. examining length, repeating a him you “Q. Are sure about that? A. style deal, little different in a Why Sure. not? ** * * * * questioning Persistence your keep “Q. To feet the off deck anyone, will make doubter almost put you this board down? A. Yes.” especially one with but not familiar more examination, appellee cross said: * * * procedure the courtroom ”. yesterday you “Q. You told us following appellee’s from tes- piece dunnage you stood on a when timony: operated Yes, sure, the winch? A. be- you standing “Q. Were on the deck? cause the water come out the oil. piece my A. Yes. board under A my I have that under feet. feet. plenty dunnage “Q. There was you have size hoard did “Q. What ship you the could use for Dunnage, piece of dun- under— A. purpose? They A. have a flat deck on nage. side, the other on the starboard side— long size was it? How was “Q. What “Q. You could have had much dun- as it? three nage A. About feet. you Why, sure; wanted? A. why was About 8 “Q. How wide A. it? not? inches wide. large “Q. You could have made as you piece get platform yourself “Q. Where did wanted? A. dunnage? ship. got A. On the Yes. We platform, no time to do the ship? we have do the Whereabouts A. “By Right the Court: side of the There hatch. near the ship. plenty aboard have had of it Could all the dun- nage put wanted got on the Poote? A. it down there? You it and Yes. Yes, Because the water come sir. A. enough? winches, you put board “Q. Was one A. some- One have to from the enough. enough. your thing feet. wide under Why you put “Q. That raised over the water? “The Court: Yes. there? board Why put my “The Court: should he two To save feet be- Witness: “The running. enough, there? One or ten said. water cause running? don’t need no “The Witness: more. Water was “The Court: keep my Yes, feet, out from water. Witness: Just winches. “The Why should he cover Prom the “The Court: winches? Court: “The dunnage? up picked Yes, you opened with Witness: one it there. from water board the winches the “By Mr. Boal: 87-88; Morris, court, Max cf. The is F.2d court, trial This 29, 33, 34 fact-finding L.Ed. 11 S.Ct. U.S. .engage always reluctant heard judge saw and trial and remanded. Reversed injustice “The end To witnesses. best to re done,”7 we may be CLARK, Judge (dissenting). of fact finding special for a the case mand contributory negligence, so issue of on the experienced judge who saw and trial An interpret judge will be able trial heard witnesses has made appellate familiar testimony. “It permissible me' rational 'seem Ford Supreme Court practice,” said record; with and in accordance Relations Labor v. National Co. Motor expostulations, I believe repeated our Board, cannot We and affirm. them should fur 221, “to causes remand 83 L.Ed. He states views. to his doubt deciding the without proceedings ther libellant, “made who believed course merits, demands that justice where Court,” thereby good impression on the record some defect in order that necessarily testimony of rejecting the bemay remand supplied. Such a may be en- asserted an spondent’s witnesses who to be permit further made to con- decks. He of oil on the tire absence made findings to additional taken or during trial several times sidered Railroad points.” See also upon essential damages, and possibility dividing Maxcy, of Wisconsin Commission rejected in saying that “libellant 717; In 50 S.Ct. U.S. acci- negligence” free *6 States, 304 Circuit, v. United Inc.
terstate injuries “were caused dent and 1146; 768, 82 L.Ed. 55, 58 S.Ct. U.S. exclusively by reason of the Cir., 156 States, 2 United Militano v. respondent” its and carelessness 599, 603. further agents. To return the case judge findings as cross-examination seems make judge should glorification proce- had, unnecessary an me Kreste whether or not accident, opinion formalities. The ref- oil on the dural omits seen day of the and erence the libellant’s sworn answer to slipped; place where he near the interrogatory, “Libellant did not notice an should, seen, whether, then he he had not if fallen,” which, he oil after had until knowledge that oil o.f because believe, explana- I the rational indicates quanti the winch excessive put in evidence more A if is needed. tion day in the times a course of several ties of careless inattention condition to oil danger day, been aware have each responsibility hardly transfer all can and, exercise of reasonable slipping worker, charged so that he times is at care, stepped. before he looked have spot of an has with notice oil findings, of his will the basis noticed if at the moment. But am appellee neg decision. If finds make his this, preferable wrong I should apportion damages. ligent, should responsibility decision full Cir., States, 2 144 order reversal here. United v. See Stokes Irrigation Co., 416, 423, down & more Dam 184 U.S. You could you? 424, 428, 431, 619; 430, 22 46 couldn’t them, wanted if Lear, 130, Why it, yes. 632; not? Estho v. 7 Pet. 8 L.Ed. I need When Armstrong 74, Lear, “By 52, 8 Pet. 8 v. L. Court: Security Mortgage 863; Ed. Co. v. more? A. Did need No. any Powers, 149, 49 S.Ct. He did need Court: 236; 73 L.Ed. Jami Pfeil v. more.” Cir., 119; son, Wyant Dyeing F. v. & Dress Cald Fur Benz v. Celeste well, Cir., 374; 848; Cir., Corporation, 67 F.2d ing Columbus Gas 136 F.2d City Corporation Columbus, Cir., Spring-Filled Fuel& Co. v. v. Nachman 58; 787; Kay Mfg. Co., Phelan Middle States 139 F.2d Corp., Scheinman, 139 F.2d Oil Zalkind v. 895, Rio Grande States v. United