Sarah A. O'leary, Administratrix v. United States Lines Company
215 F.2d 708
1st Cir.
1954
Check Treatment

*1 practical purposes for all Court is thus fed- operating in the judicial tribunal leg- judicial system. is a Whether it eral Congress created islative Constitution, I, 8, of section Article Court, other or some like the Customs agency placed con- judicial form housekeeping Execu-

venience is, there- Branch the Government tive fore, legal merely semantics a matter called, since, is an whatever agency judicial “independent” the work supervision subject is not

of which Executive Branch of review ap- only by the federal but Government

pellate court should accord- courts. The judicial ingly accepted forms of follow by indicating appro- procedure in some way

priate re- on its each case record the full court the names viewed Judge, Hartigan, dissented. Circuit judges participate in deci- who F.Supp. D.C., See also ultimately rendered. sion of the Tax Court will be decision will remanded and the cause

reversed proceedings inconsistent further opinion. this O’LEARY, Administratrix, A.

Sarah Appellant, Plaintiff, COMPANY, LINES STATES

UNITED Defendant, Appellee.

No. 4797. Appeals Court of

United States Circuit. First 1, 1954.

Sept. *2 wages

of stat- under Massachusetts providing of actions ute for the survival Mass.Gen.Laws, Chapter of tort. § 1(2). jurisdiction upon Federal based diversity citizenship parties controversy in the amount alleged clearly between them es- 1332(a) tablished. Title 28 U.S.C. § d). August 31, 1951, On the defendant’s Attorney in vessel American arrived cargo already Boston fitted to receive a grain deep in her 4No. hold and the thereunder, immediately tanks tied up at a dock in That waters. plaintiff’s decedent, afternoon the a vet- longshoreman years eran with several loading experience grain, hired independent to work on the an vessel stevedoring concern with which de- fendant had a contract to load the ves- reported sel. The decedent on board gang p. his about 7 m. and was told gang deep his boss tanks the No. hold were to be loaded first. tanks, number, These four in are located Harry platform Kisloff, Boston, (Larry beneath the lower Mass. floor hold, Bear, wide, Boston, Mass., brief), the lower Alan which was 65 feet long high. appellant. feet and 13 feet Each for tank ap- is 11 feet and is fitted with an Walsh, Boston, (Leo Thomas H. Mass. proximately by9 10 foot cover which Glynn, Boston, Mass., brief), F. on the place coaming when ing rests a extend- appellee. or 9 some 8 inches above the floor MAGRUDER, Judge, Before Chief arranged hold. The four tanks are HARTIGAN, and WOODBURY and pairs, spaced side side are Judges. Circuit apart port feet in the starboard to direc- apart tion and 18 feet in the fore and aft WOODBURY, Judge. Circuit direction. in an action injury to recover for the and When the vessel fitted to receive alleged husband, cargo death of her stevedore her the covers on four all negligently inflicted, have the No. hold were re- appeal judgment placed taken this from a side, en- moved and to one by jury tered on a verdict returned sprinkled tanks were then cleaned and the defendant direction of the court. with lime absorb residual moisture. complaint is in two counts. In the In addition the lower hold was bisected recovery first lengthwise by count temporary par- maximum wooden statutory sought extending amount is ceiling for the death tition from the to with- longshoreman of the deceased purpose 3 or feet the floor the Camp- prevent grain Massachusetts version of Lord was to hold Mass.Gen.Laws, shifting Chapter bell’s Act. during from from side to side recovery voyage. 2C. the second count board, § is the This shifting so sought pain called, for the decedent’s and men- obstructed ladders either end anguish, expenses leading above, tal medical and loss of the hold to the deck speech, groaning, complaining leaving escape located ladder only pain head, He as the and back. hold shoulders port section aft hospital egress. ingress was taken ambulance *3 or of means suffering where he from was found to be by step stevedores taken the first injuries a fractured from skull and other loading vessel was the preparation for days which he died a few later. sections of forward two to the remove O’Leary’s After covering the accident hat was the No. hatch main deck the port deep found the after tank clear- done it could was When this hold. ly 2yz vertically pipe which a inch extended two for- the covers seen that be about feet removed, above the bottom the of had been ward tanks pipe tank. being This was or 2 feet of shifting place, aft and that a was in board coaming, under the forward and set had built box” been “feeder prints foot were seen in around the lime from the position.1 It could not be seen prints it. Also white hand were seen deck, the covers whether coaming the on testimony inside of the the but removed also been tanks had after conflicting is as to whether place. While the sections or still in prints pointed up down, those hand being or or removed of hatch cover were the they part whether were on the forward cluster obtained a stevedore the boss light coaming pipe the whether above or which was from vessel’s mate the they part were on the after of the coam- cord into the forward star- its lowered ing escape near the ladder. was loaded tank which board belonging blowing Then a machine first. disclosing plaintiff’s testimony On the stevedoring company hoisted was foregoing the facts the District Court ship’s and low- on the tackle board jury directed to return the a verdict for through into the tank the feeder box ered ground on the defendant the lack grain distributing purpose the for the from which the could evenly as it on board. came reasonably find causal on the part of the defendant. gang in the 7:15 a stevedore About Chambers, 1941, In Just v. at- was sent below to named O’Halloran U.S. L.Ed. the pipe the machine and the blower tach Supreme Court held that maritime guide proper position in for- its augmented supplemented by law or tank, five min- and about ward starboard providing for statutes the surviv decedent ordered to utes later go against al of actions of tort the estates help Two or O’Halloran. below tort-feasors, of deceased gang so in con testi- three other stevedores might sequence plaintiff given they maintain when this order was fied that action the estate of a deceased in the the decedent cross deck saw shipowner injuries for top recover re escape hatch at direction sulting occurring leading from a maritime tort escape ladder to the No. the territorial within waters of the state. returned the deck O’Halloran hold. Although authority lacking, seems to be he 7:30 7:35 and was asked if about reasoning parity no doubt the con He he seen the decedent. said that had true, anything verse also is en not seen heard had O’Leary, the Massachusetts survival five minutes later titled stat and about O’Leary appeared “an ute cited above maintain the cause of on deck with aw- head, lump” his di- action stated the second count of her on his clothes ful lime, complaint for her deceased husband’s and covered with without shevelled anguish, staggering wages, hat, pain, mental loss of and incoherent grain cargo large so that “feeder box" is filled with 1. A is a bottomless voyage grain measuring during box, feet, will about below settles wooden keep as needed to inside section of the batch fed into hold between set top through deck, vessel balance. deck and ’tween Usually féd into the hold. Supreme expenses. Court 74 S.Ct. 202 wherein the Nor can there medical on maintain of the a civil action she United States in doubt whatever that saving for first clause in the law side under the cause of action stated long categorically complaint the first for it has time held count her remedy rights shore to recover settled that a state-created worker wrongful personal injuries both enforced death occur- death will be short of ring admiralty proceed courts a vessel waters ings neg- saving resulting when death of under the clause a state from either the ligence navi from a tort committed or the unsea- results gable stat whose waters within a state worthiness of to be de- the vessel are *4 remedy. general by Ham provides such a termined maritime law ute 133, 398, 1907, 52 ilton, by 28 207 U.S. S.Ct. and not within the law of the state Garcia, 264; Fuel Co. v. L.Ed. Western whose waters the accident occurred. 233, 89, case, course, 1921, squarely 42 66 L.Ed. S.Ct. 257 U.S. That is not of Porello, opinion 210; point here, v. American Stevedores 346 but in Court’s 446, 847, 1947, page 409, page 91 L. 67 S.Ct. 330 U.S. U.S. at 74 205 it 1011, by way cases cited therein. Ed. is said “Even if of dictum that Cham seeking in Just See also the discussion v. Hawn were to enforce state- bers, supra. [referring remedy right, created for this right recovery to his for unseaworthi- although But, perfectly clear that it is negligence] ness and federal maritime may Massachu- look to the controlling.” Indeed, in law would be by remedy, it is for a setts death act incongruous opinion our would be li- the defendant’s means clear whether ability hold, conformity Talbot, Pope & with application by determined is to be Hawn, supra, Inc. v. that the maritime Massachusetts, of the substantive law rights respective law determined the Supreme by ultimately determined as personal parties in- event of Commonwealth, Judicial Court juries death, short of that state law but liability deter- is to be or whether its rights determined their injuries in the event of general by application mar- mined resulting ultimate conse- ultimately by law, declared as itime Supreme quence And, of death. it would be even the United States. Court of incongruous more hold that the hus- court, have so far as we The latter right action, plain- band’s determine, ad- has never able to been here asserts in her count two under tiff question. specifically itself to the dressed statute, is to local survival be de- however, appeals, it has In the courts Pope termined under the rule of & Tal- who times that one held several been law, maritime bot but that death stat- recover under seeks right arising of action out of the same occurring ute a tort directly upon her accident conferred only may do of the state so waters is to be the local death act determined the substantive law accordance Furthermore, Supreme law. as the local commit- the tort was in which the state pointed out Chelentis Luck- Court v. Feige Hurley, Cir., 1937, 6 See v. ted. 372, S. S. U.S. enbach Klingseisen 575, Cos- v. 89 F.2d 384, 501, 1171, 62 L.Ed. the sav- 38 S.Ct. Co., Cir., 1939, Transp. 101 F.2d tanzo ing no intention that li- clause reveals cited, re- 902, followed and and cases remedy ability as shall be deter- as well 72, Cir., H. S. Inc. No. in The affirmed common law rather than mined 341, H. 1942, 343 and Puleo v. F.2d law, apply maritime and to state sub- Co., Cir., 1947, 159 F.2d & E. Moss rights to determine the stantive law 847, 845, 842, denied 331 certiorari U.S. divergence parties create would 1733, 91 L.Ed. 1857. But these 67 S.Ct. uniformity long con- Pope field where prior all decided cases Talbot, Judge important. Hawn, 1953, also See Chief sidered Inc. v. U.S. do not need Magruder’s prints seen. We which were in Doucette discussion however, precise speculate, Vincent, Cir., F.2d way met with decedent which the seq.

et injuries, see how his fatal for we cannot not, case, we do In this happened rea- could whatever have dictum, except we cannot indeed shipowner’s sonably attributed to the appli upon question pass the law fault. for this The reason cable to count one. in- the vessel No claim is made that how on the that we do not see respect. unseaworthy any volved neg finding defendant’s causal a ligence negligence gener- Both counts sound ally, reasonably made under could any is, specification of without law. Wherefore local or maritime either precise fault, so must look to see we question of contribu do not reach the we there is evidence from which whether mari tory local and wherein might reasonably de- find that the radically in that under time law differ negligent fendant negligence provides a former such the complete performance of of care it owed the lat defense whereas *5 employee in- to the an of an decedent as mitigate damages. only serves to ter it dependent contractor. supra. Hawn, Pope & Talbot v. theory plaintiff’s accident The vessel arrived fitted to re cargo the es- descended decedent 4 hold is that the a in her No. ceive port section cape after ladder to the the tanks thereunder and the and groping in hold lower and This the floor master stevedore was so informed. help way to in darkness implied forward the tanks the covers of those removed, and, starboard indeed, in the forward O’Halloran when the had been port deep tank opened into the aft tank fell was it seen that hatch could be footprints were the his hat and where that was in the case the for fact as to found, himself he extricated from which tanks. And all four tanks ward since top standing inch filled, on the were to be it must have been obvi 2% jumping pipe to probability and therein verticle in all the covers of ous that coaming pull grasp himself out. and the after were off. The other the also breaking credulity shifting hold, the our to It stretches in obstructions box, inch- point or 8 how a man feet 7 to see also to be and the feeder were board weighing 210 and 220 expected, tall between es constructed accordance were strange strong, pounds, could in practice, however obvious. with usual and were surroundings way any in darkness find his no evidence of There is substantial thing pipe or three vertical two unusual about the structure to inch a 2% way high ship know was did not she was fitted to which he feet spite cargo loaded, then, there, of a fractured and al and receive the may though fittings and un- him delirious have created' made skull which stand, hazard, they unexpect staggering, created no able to walk without some top extraordinary hazard, necessarily one foot on and none the ball of on ed or high, jump enough, light pipe not in all its and would not disclose which of merely coaming dangerous only grasp, a hold touch but was to details. to. certainly dark, higher his head and it was and than because 3 feet at least danger. nothing having away, then, hidden about that ac- was feet 1 or any finding feat, pull of the defendant’s complished himself out of Thus predicated Furthermore, must be on a there was tank. the' arrange light. But, duty mark or marks stevedore, the master and in tank as ment with such the bottom lime generally practice necessarily with the have been made accordance followed, would ship’s only it, duty pro falling body person into aof adequate they certainly an number of marks had been there vide suitable such lights, power operate clearly and the electric as the foot- visible as would them), of the state on the waters (and, perhaps, connect them only duty with the sub do so accordance it was the master stevedore’s while thought which lights stantive law request were he such Ap tort The Court place he was committed. required them where and to has, peals like they for the Fourth Circuit thought evi On the needed. were Casualty wise, ship Co. held Continental so found dence it could Benny Cir., Skou, 200 F. its performance v. The failed owner U.S. duty. evi 246 certiorari say, 2d denied there is no That is to opinion lights these 992. The indicates not avail court’s were dence that suitable weight longer adequate quantity, cases are no because ship in able on the dictum, statement, admittedly lights supplied which defec or that Talbot, Hawn, Pope tive, found in Inc. not continuous that current was page 409, operate ly con 346 U.S. 406 On the available them. Pope trary, appears In the & Talbot case the boss stevedore ship’s plaintiff, carpenter employed job asked the mate on on the injured independent contractor, light, it, in received lowered working deep tank, and while navi forward starboard berthed on gable Pennsylvania. he asked more that after the accident waters He lights lights brought damages and received all the he want a civil action for Lighting shipowner an incident of ed. the hold was in a dis federal stevedoring neg Pennsylvania, alleging operation over trict court ligence control, ship’s if retained no unseaworthiness. *6 light, jury ship A was breach of found that was unsea worthy, shipowner negli was of the master the breach that steve that dore, shipowner. gent, negli plaintiff’s that Cf. not own Co., Cir., 1952, Belships gence v. 3 damages. Brabazon had contributed to his 904, 909; Compag Berti v. 202 see F.2d The contended that the Navigation Cyprien Fabre, finding 213 negligence nie De contributory should 397, F.2d accepted decided the United States complete have been aas bar Appeals plaintiff’s recovery Court for the Second Circuit the sylvania Penn because May 26, 1954. Under these circumstanc law controls under that plaintiff es the must content contributory negligence state’s law Longshoremen’s her remedies under the injured person insuperable of an is an Compensation Act, and Harbor Workers’ recovery. rejecting bar to his In this 950, 33 without §§ U.S.C.A. what 901— contention the court stated in 346 U.S. Pope dissenting Mr. Justice Jackson page 409, page on on S.Ct. 205: “But Hawn, Talbot, supra, Inc. v. 346 U.S. injured navigable he was waters while 419, page page S.Ct. at referred working ship on a to enable com it to recovery to as “a bonus over and above loading plete transporta its safer for statutory compensation scale cargo by Consequent tion of its water. Congress injured has established for har ly, the of Hawn’s basis action is a mari general”. bor workers tort, type a time action which the Con judgment of The the District Court placed power stitution under national affirmed. control ‘its substantive as well as * * procedural its features */ Pana HARTIGAN, Judge (dissent- Circuit Johnson, 375, ma R. Co. v. 386, 264 U.S. ing). 391, 393, 44 S.Ct. 68 L.Ed. 748. And complaint Hawn’s asserted no claim cre acknowledges opinion The of the court arising Pennsylvania ated out of Appeals that the Courts of for the Sec right Third, recovery ond, law. His for and Sixth held unsea Circuits have negligence who worthiness and that one seeks to recover under a is rooted in occurring death statute a tort maritime state for federal law. Even if Hawn “ * * * seeking 214, page page to enforce a state-created S.Ct. at 147: right, liability remedy remedy maritime The this federal are created for ” * * * controlling. statutes, law would the same limitations remedy therefore treated are quotation It is obvious from this ” * * * right. (Ital as limitations of the when the court states federal maritime ours.) Chambers, ics See also Just v. su plaintiff law controls when the seeks to pra. In Garrett v. Moore-McCormack remedy enforce a state created for “this 1942, Co., 239, 245, U.S. 63 S.Ct. right,” right” right a the “this refers to 246, 251, 87 L.Ed. 239 said: the court “rooted In the federal maritime law.” “ * * * objective leg constant Pope & Talbot case court held jurisprudence islation to assure injuries a claim for work- suffered while litigants protection full for all substan ing on a waters berthed rights tive them intended be afforded ship- because of the right jurisdiction in which the owner and the unseaworthiness ** originates. itself And admiral right ship was rooted in federal mari- courts, protect rights ty when invoked time law. But in the case the instant law, rooted state endeavor to deter wrong- brought an action for a mine the issues accordance with long ful death. And it has well es- ” * * * substantive law of State. right tablished that a of action for authority The court the latter cites as wrongful death is federal rooted Garcia, Fuel statement Western Co. v. maritime law. The maritime law federal supra, a case in which the of ac cause recovery wrongful allowed brought tion and defenses to a suit Harrisburg, 1886, death. U.S. admiralty court were based on a 358; 199, 140, 30 L.Ed. Western S.Ct. wrongful Levin death statute. 233, Garcia, 1921, Co. 257 U.S. Fuel v. Deupree, supra, person- son libel in 210; 89, 66 L.Ed. Just v. Cham- 42 bers, brought am a federal district 383, 687, 1941, 312 U.S. 61 S.Ct. Kentucky an administrator Deupree, Levinson v. L.Ed. damages Kentucky seeking under the U.S. 73 S.Ct. L.Ed. *7 wrongful death statute. The court stat Furthermore, Supreme Court has the 651, 652, pages in 345 U.S. on 73 S.Ct. ed “ in numerous that cases an indicated * * * page 916: In the absence wrongful brought under a state action congressional action, adopt the of statute, plaintiff's remedy and death obligatio by and ed enforced the created liability are to be deter- the defendant’s originating Kentucky as it would one application by of the substan- mined foreign Bourgog jurisdiction. La Harris- law the state. In The tive 138, 664, 679, ne, 95, 210 U.S. 28 52 S.Ct. supra, burg, of a de- child the widow and 973; Hamilton, 398, L.Ed. 405, The 207 U.S. brought of a schooner officer ceased 134, 133, 52 L.Ed. 264. S.Ct. in a federal district court rem suit it And it bound enforce as Harrisburg to re- the Steamer * * it, court, The found damages of the de- for the death cover admiralty ruled, that an court was not caused ceased “procedural niceties” of bound colliding with the schooner. steamer Kentucky law. that action held no such court first The Finally, incongruities, if, terms United the courts of the lie in would majority opinion suggests, gener- as the general law. maritime under the States liability maritime law determines the al wrong- also relied claimants The remedy, determines and state law of Massachusetts statutes death ful rights asserting parties having then court, Pennsylvania. found wrongful brought arising pe- death statute after the the suit that may prefer- provided tort maritime obtain from the stat- limitations riod compared as expired, treatment with ordered that the libel ential those had utes asserting rights under the same stated in 119 U.S. on statute dismissed be then is non-maritime tort. See issue whether or of a because Tompkins require sub Stevens, The is R. sufficient evidence Erie R. v. Law, jury of the 64 mission case to Uniform General Maritime (1950). duty, 246, defined of a as defendant’s breach Harv.L.Rev. courts, and above the Massachusetts opinion therefore, my we is, that It so, if whether said caused breach decisions look Massachusetts’ must O’Leary’s question Since death. this nature and ex- determine the order pertains rights of the to the substantive duty respect with of the defendant’s tent parties, R. Erie then under the rule plaintiff. 1938, 64, Tompkins, Co. v. 304 U.S. 1909, Booth, 202 Mass. v. In Crimmins 817, 1188, 82 L.Ed. its resolution 21, 451, 452, 22, 449, 17, 88 N.E. determined the decisions of “* * * Apart from con court said: Kurn, courts. Massachusetts Carter v. shipown duty tract, the defendant Cir., 1942, 415; 127 F.2d Waldron v. lawfully at work a stevedore er toward Co., Cir., Casualty Surety Aetna upon vessel is the same his 1944, 230; 141 F.2d Gutierrez Public v. apparatus respecting employer Cir., Co., Transp. Service Interstate with and permanent constructions 1948, 678; Compare v. F.2d Gorham expected to upon the laborer Ass’n, Mutual Health & Ben. Accident though may work, laborer be even Cir., 1940, 97, 114 F.2d certiorari de independ employ of an immediate nied, 1941, 615, 688, 312 U.S. 61 S.Ct. * * * But even when contractor. ent 85 L.Ed. See Stoner v. New York grows assumption out of a of risk Co., 1940, 464, Life Insurance 311 U.S. contract, held to cover never 336, 61 S.Ct. 85 L.Ed. 284. dangers, which or obscure unseen those making a motion for a directed ver- reasonably an em be discerned cannot “ * * * dict, the defendant admits the employer which the ploye, and jury might truth of all facts which the Under such properly to know about. held plaintiff, find in favor of the whatever on the warn exists conditions the nature of the evidence. He admits employer, who knows part owner conflicts, if that of the danger, ought toward the la know plaintiff is true so far as it conflicts with borer, know cannot does not who * * * his own. The court also will knowledge charged fairly of it. with make inference of » fact favor of «(cid:127) * * Boston, Gray R. R. And party offering the evidence which 482, 479, Mass. R.L.& the evidence warrants and which the said: the court N.E. jury, degree propriety, the least “ (cid:127)* *8 contract, special Apart from might have inferred.” Shea v. Ameri- employee the would owe such owner can Hide & Leather 221 Mass. exercising care to dis duty reasonable 282, 283, 158, 159; 109 N.E. Horn v. remedy condition a defective and cover Adamian, 1951, 77, 327 Mass. 97 N.E.2d open premises which was not and in the 167. ” * * * employee. See such to obvious England Transpor Cohen, In 1929, & Navien v. Fuel Newv. 268 Cullen Mass. 427, 85, 431, 1925, 666, Co., 668, N.E. Mass. 148 N.E. 167 tation the court employer, stated owes that The 371. not “ “ * * * * * duty required servant inform his exclude all other possibilities open and com as to the which are injury cause of of conditions reasonably preponderance if a prehensible to careful of evidence he proved duty employer that was The does caused man. the defend ” * * * using negligence. eyes employee from his ant’s prepon relieve regard things judgment derance of the evidence his defined in ” * * * Murphy Sargent observation. v. open Massachusetts Co., Accident Withy Co., 1927, Furness, 1940, 246, 250, Mass. 307 Mass. 825, N.E.2d “ * * * being 396, 836, 827, N.E. 837. 394, power to standards rants sions to the evidence 753. Cf. Ry. appear there. 301 Mass. Alber, 1939, mind or Mass. Spinney, 1942, standing any rived from the After the convince the termination truth of the Sells Floto 1018; derance of sense N.E. Co., proposition my the submission that actual belief 121, Koczur v. L.R.A., N.S., more * * * minds opinion the 611; enunciated 372, Bigwood the evidence Circus, 1928, 27 N.E.2d tribunal doubts likely proposition 310 Mass. Marshall v. 209 Mass. ” evidence, is N.E.2d Mass. the tribunal Flanagan, 1940, proved by See, v. Boston & N. St. or fact, has been application which .probable the instant case in its the record war- if 155, e. 262 Mass. 749, 205; exists in the it is made to g., Carter, above deci- has the de Thomas v. 18 N.E.2d the actual still 39 N.E.2d truth, Crisafi v. weighed, Rocha v. notwith 95 N.E. prepon proved. linger 1938, 120, de Fennell, three foot ning through uated at practice knowledge? A. Covered. no. sion ? done— such a sion should be Some all “Q. What “The Court: “Q. Now, [******] “Q. “The Witness: deep guards they custom with ships A. practice I am not another guards tank covers should be on. have cables or chains run- four corners of the tanks but deep tanks, They high.” and what is that come in without them. A. is there some respect how do is the custom around the have four or tops stevedore, No, respect Well, asking Yes, custom; yes no. they sir. it has been them, to a what pipes provision come in ? openings Is there testified: practice provi- provi- about your they sit- jury “The Court: Is there a usual con- cargo respect ship? dition with to a respect With or not to whether Yes, “The Witness: sir. upon evidence in the record might reasonably find a breach of “Q. that usual What condi- defendant, opin- court’s tion? A. The hatch covers are al- correctly the master ion states that steve- ways they not; on. At times are dore that the vessel was informed arriv- I mean sometimes there is three on cargo ed fitted to receive off; and one sometimes two and tanks there- her No. hold two. court then declares: “This under. The “Q. is the usual What condi- implied that the covers those tanks they Well, tion? A. are on. * * removed, I find no had been justification “Q. you referring And when are implication for this covers, particular to the hatch what knowledge ar- record. you referring hatch covers are to? grain in the No. 4 fitted to receive rived speaking A. You are about the low- only implied the covers were hold on, er tanks. were off that covers *9 “Q. provi- Is there some usual guarded, covers of the that the tanks guarding freighter sion for that immediately filled with to be were that deep tanks in lower bottom? unguarded. tanks grain and the off were Yes, A. sir. stevedores, O’Neil, testified as one of the “Q. provision? What usual is the follows: Well, railing put up A. there you “Q. Well, tell us what will stanchions, around the four and the ships come in with portion supposed chain is to be made fast.” A. can on— I covers tank their enough. correctly easy clarify As far I The court states as that it when open it far I the hatch was could as know be seen that concerned am also off.” There ability the two off. must August 31, N.E. 505. O’Neil Line filled with since covers theless, take two off. ward When covers do hatch, move one at a time. covers of a A. That is And even us to did tell in the two forward loaded tanks “Q. “X-Q. You tell me what “X-Q. only But S.S. have been obvious all four tanks of the after tanks the covers end, strip forward you we were with When unguarded. was not at you. 1950. O’Neil you if all That is as we two are grain right.” remove at a time? A. during you forward tanks loading four forward end going testified: then were, were Mr. Culleton during tank, all remove 227 Mass. all tanks. evidence, See Ford v. tank tanks after tanks declares But we would obvious would be off he testified: we how night, load told covers would re- in all the tank were to be night filled, that the many grain were “ * * * you? they never- told for- prob- Allan were were A. ner of the hatch? A. There wasn’t freighter Yes. where the machine was to be provided. aboard cluster one Fennell testified: sir.” own observation what done? That is where the outlets are. the deckhouse between the winches. There was no dropped ally “Q. “Q. “Q. “Q. “Q. [*] “Q. providing lights there is a cluster in each on each corner of lights provided hatches. [*] Were there isWhat There And where are Is there some usual manner Can lights A. The mate or floodlights down on. A. [*] you put when work is to lights directly in at They There it? A. -X- tell us from out are the corners-—A. any at each cor- nighttime? none? A. at cluster lights, -X- are was one on overhead. they usually working Well, hatch. the crew the tank right -X- corners corner, placed. if lights, light your any, usu- No, [*] A. at “Q. many usually And how are grain, “Q. you load And when provided? A. Four.” you many do load at in how A. One.” one time? Furthermore, I do not believe that the supports record the court’s statement testified: Fennell stevedore, Hanlon, that the boss asked the talking “X-Q. now about I am light ship’s only mate for and aft- openings on vessels in tanks lights er accident asked for he more running grain. you De- are when lights and received all the he wanted. you guards, the last one scribe Hanlon testified: Well, the tanks. A. saw around “Q. right, you All tell us what around the is four stanchions you ship? did when went aboard are, pipe but in the chains where the Well, A. I when went working aboard the you would be two tanks ship, get I told guards, the officer to would be time there lights. two tanks would be but the other guarded.” an defendant testified: record Also, adequate number of to warrant a there is failed to ample provide evidence in the finding *10 lights. the men O’Neil have A. We “X-Q. “Q. [*] -X- up there, -X- [*] What got How [*] -X- one lights many do light [*] [*] you did lights [*] -X- at that A. know? you get? [*] X- did time. you (cid:127)» Well, “Q. you I would think it tell us what the was two. Will guess. Two, respect port I practice with is O’Leary’s cap “X-Q. footprints you any ask and time when Did light? deep port tank. were seen the after for additional the mate get A. I asked the mate to Handprints 4. lime were made with got light lights. The mate coaming port seen on the of the after an- I told him needed No. and we deep tank. got time other one. that some We evidence, In addition to the above afterwards. relationship the evidence close between “X-Q. gave you all the So he negligence defendant and of the lights you during the asked for injuries O’Leary’s strongly to show tends evening? yes.” night, A. That port O’Leary fell into the after respect deep of causa- With to the issue tank. See Johnson v. Griffiths S. tion, Co., Cir., 1945, “It stretch- court that: states S. 150 F.2d Sad- breaking point credulity Pennsylvania Co., Cir., es our to the R. ler ” * * * O’Leary Kinsley under the see how In F.2d 784. Brooks v. have case could facts of the instant Iron & 202 Mass. Machine pulled 228, 232, jumped 771, 772, employee himself out and 88 N.E. an brought deep employer all the circumstances tank. Under an action injuries here, explosion is court I do not believe that the caused which sufficiently physical acquainted employee pour- with occurred while the was O’Leary strength ability ing pig to make molten iron into a bed. The tri- ruling It as a matter of law. al court for the defend- such directed a verdict tank, depth Supreme to me that the of the Judicial Court of seems ant. height holding reversed, vertical diameter and that the the pipe Massachusetts jury location, might tank and its found that the ex- have weight height, present negligent O’Leary’s plosion due accumu- was to the pig jury question to whether or not he of rust or moisture bed. lation argued get tank, partic- out of the The defendant that since such was able ularly following explosion might evidence: an due to oth- have been view negligence of er than the the de- causes go O’Leary ordered to When 1. fendant, plaintiff to ex- it was for the pants, platform, his lower to the below operation of those causes clude the very clean. When were T-shirt shoes greater weight of the evidence. The clothes main deck his he returned objection in lan- court answered this The four with lime. covered were guage particularly pertinent which spread lime. O’Neil were tanks of the instant case when it said: the facts deep tanks were the testified “ * * right Where the have a only parts in which there negligence, actual find such followed lime. danger very existence of the O’Leary’scap in the aft- was found 2. might expected have been to arise there- port deep tank. er from, it cannot be said as a matter of law go bound further following O’Leary’s Immediately operation pos- and to exclude other deck, footprints were main return to conceivably to which causes dan- sible port deep No after tank. in the seen ger might due, have been instead of hav- footprints were seen other ing due to the actual except those of O’Halloran deep tanks ” * * * shown. which has been There tank. starboard forward my opinion judgment any- tending to show is no evidence O’Leary should court be vacated and body district set O’Halloran than other and the case remanded to that the time aside between placed a new trial. in them and for lime was when