The opinion of the court was delivered by: MCVICAR
This is an action for recovery of maintenance and cure. The Court, after hearing, makes the following Findings of Fact and Conclusions of Law:
1. Libellant, Otto J. Murphy, is a citizen and resident of Henderson, West Virginia.
2. Respondent, American Barge Line Company, is a corporation and has an office for the transaction of business in the City of Pittsburgh, Pennsylvania, and is engaged in the business of transporting freight on the Ohio River and is within the jurisdiction of this Court.
3. This Court has jurisdiction over the parties and subject matter of this suit under and by virtue of its general admiralty jurisdiction in maritime actions under the Constitution and Laws of the United States.
4. This action is a libel in a cause of action, civil and maritime, being for maintenance and cure claimed by libellant as being due him from respondent.
5. Libellant on December 1, 1946, and for sometime prior thereto, was employed by respondent as a seaman in the capacity of deckhand on the Motor Vessel 'Duncan Bruce' which was owned and operated by respondent in navigation on the Ohio River, which is a navigable water of the United States and libellant was a member of the crew of said vessel.
6. On the night of December 1, 1946, libellant was engaged in the performance of his work and duties aboard the said vessel while the same was in navigation on the Ohio River proceeding downstream at a point near Baden, Pennsylvania, with its tow. While libellant was carrying a ratchet on his shoulder and was proceeding from the vessel to the barge immediately attached thereto, he slipped and fell on the icy surface of said barge and fell injuring the lower part of his back.
7. Libellant, by reason of the aforesaid injury, was disabled from performing gainful work and has continued to be disabled and has not been gainfully employed from December 4, 1946, the day he left the vessel up to the time of the hearing, in this case, December 16, 1947, except for 3 days of casual work at odd jobs. His need to maintenance and cure continued during said time.
8. The parties stipulated that $ 3.50 per day is a fair and reasonable amount for libellant's maintenance and cure if right to recover exists.
9. December 4, 1946, the Captain of the 'Duncan Bruce' gave libellant a hospital ticket to the Marine Hospital at Gallipolis, Ohio prior to his leaving the vessel. Libellant reported to the Marine Hospital station at Gallipolis, Ohio, December 5, 1946. Doctor Brown, the doctor in charge, was out of town. Consequently libellant reported back December 14, 1946. On that date Doctor Brown examined him and found that libellant had a serious injury to his back. He returned again and received treatment from Doctor Brown December 23, 1946. On January 3, 1947 libellant returned and was told that Doctor Brown had done all that he could for him and that he advised him to go to the Marine Hospital at Pittsburgh, Pennsylvania. He gave him a note so that he could be admitted there. On January 18, 1947, libellant again returned to Doctor Brown at the Gallipolis Hospital and stated that by reason of pain he could not stand the trip to Pittsburgh. He was advised again to go to the Pittsburgh hospital even though he was suffering much pain. The distance from libellant's home to Pittsburgh is over 200 miles.
11. Libellant believed he could not make the trip by reason of the pain he was undergoing. Doctor Brown, although being of the opinion that he should go, did not testify that it would not damage libellant if he made the trip. Why the libellant was not hospitalized at Gallipolis does not appear.
12. If libellant subsequently was able to accept respondent's offer of hospitalization, there was no evidence that it would ...