Zinnel v. United States Shipping Board EF Corporation, 10 F.2d 47 (2d Cir. 1925)

*48 Charles Warren Hastings, of New York City, for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn (Edgar G. Wandless and Joseph M. Dreyer, both of New York City, of counsel), for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The refusal of the court to allow the photograph in evidence for the purpose offered was erroneous. It was not necessary that the witness who took it should swear that it was correct at the exact moment of the accident, when he was not present. If it represented the truth in the morning, a few hours before, and at once after the accident, the jury was entitled to assume that there had been no change in the interim. It was, moreover, admissible to contradict the testimony of the master and the mate that the lines were kept standing through the whole voyage, which it very effectually did. Not only was the plaintiff entitled to go to the jury upon the question whether the lines were standing at the time, assuming that to be relevant, but it is very hard to see how the jury could have reached a verdict for the defendant upon that issue. The learned judge was certainly in error in taking the case from the jury.

The question of law remains, whether the absence of the line was a default in the defendant's duty to exercise reasonable care to furnish the decedent with a reasonably safe place to work. Upon this we might accept the testimony of the master and the mate themselves as sufficient evidence, for they swore that the lines were kept standing throughout the voyage, for the purpose of protecting seamen when passing across the deck load. Nor can we see how, in the absence of such proof, there can be much doubt about the necessity of some such guard. The deck load in effect raised the well deck to the level of the forecastle head, and left no protection of any sort. Without some guard line we need no expert to show us that a case was presented, which a jury must decide, as to the safety of the place where the intestate was ordered to work. Indeed, it seems to us hard to see how a jury could find for the defendant on this issue, as well as on the issue of the absence of the line.

The cause arises in substance under the Employers' Liability Act (Comp. St. §§ 8657-8665), since that is incorporated by reference. It is therefore quite unnecessary to say that the ship was unseaworthy, at least in the ordinary sense, which makes the commencement of the voyage the test. The act has made applicable to work at sea the same rules which protect work on shore, and the shipowner is as liable for the faulty use by the crew of proper apparatus as though the ship were unseaworthy in equipment when she broke ground. This was in effect ruled in Panama R. R. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748, where one of the faults was in the negligent use of apparently sound equipment. We therefore decline to engage in any discussion as to seaworthiness, beyond, indeed, observing that the term has itself the most relative meaning (The Silvia, 171 U.S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U.S. 1, 9, 24 S. Ct. 1, 48 L. Ed. 65), and that cases can arise where juries must pass upon it (Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927). All we need, and do, hold is that under the law of master and *49 servant, as now in force by statute, the circumstances were such as would allow the jury to find that there was no rope, and that its absence made the intestate's place of work unsafe.

There of course remains the question whether they might have also said that the fault caused the loss. About that we agree no certain conclusion was possible. Nobody could, in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it would have stopped his body. But we are not dealing with a criminal case, nor are we justified, where certainty is impossible, in insisting upon it. We cannot say that there was no likelihood that a rope three feet above the deck made by the timber would not have saved the seaman. In this connection we note that the ship did not take aboard green water, but that the bluff of the bow broke the force of the sea shipped, which, when it reached the deck load, was made up of white water, and was not big enough to lift up a man's body. Considering that such lines were run for the express purpose, among others, of protecting seamen, we think it a question about which reasonable men might at least differ whether the intestate would not have been saved, had it been there.

As to the assumption of risk, on which we all agree, we need do no more than refer to our own decisions in Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523, and Panama R. R. Co. v. Johnson (C. C. A.) 289 F. 964, and to the law in other circuits, Lafourche Packet Co. v. Henderson, 94 F. 871, 36 C. C. A. 519 (C. C. A. 5), and The Colusa, 248 F. 21, 160 C. C. A. 161 (C. C. A. 9).

Judgment reversed, and new trial ordered.

HOUGH, Circuit Judge (dissenting in part).

I agree with this opinion regarding the admission in evidence of the photograph and the effect of previous decisions of this court as to assumption of risk; but I cannot approve of the obvious intent of the majority to dump this case on a jury with no more or different testimony than that which is now before us. Whenever a jury is asked to declare whether a certain act or omission is "lack of care according to the circumstances" i. e. negligent proof of the circumstances includes proof as to what skilled men habitually do under similar circumstances, unless the occurrence at bar is so familiar to a jury of the vicinage as to need no such exposition. Injury by a vehicle to a foot passenger on a New York street crossing is an instance of such familiarity.

But the present decision invites, by easy possibility, a jury of tailors and haberdashers to pass judgment on how to make a wet and rolling deck in a seaway a "safe place to work"; for there is no evidence at all as to what good seamanship, not the fears of tailors, require on such a ship at such a time. In my opinion, no case along these proper lines was made for a jury, and the result below was right.