son, had put a tourniquet on his mother's arm. The Captain loosened the tourniquet and observed the blood was not spurting, so he treated libellant's injury with merthiolate and instructed her son to watch the flow of blood and to tighten the tourniquet if she started to bleed profusely.
15. The Captain returned to the pilot house and called the Lock Master by radio telephone, and ordered a cab. He then maneuvered the boat over near the lock and had the libellant put ashore, in the company of Hoyt and her son and another member of the crew who needed medical treatment for another reason. The Captain gave Hoyt what is called a 'hospital ticket', entitling the libellant to entry into and free treatment at the Nichols Hospital, a government institution in Louisville, Kentucky.
16. The libellant was taken off the boat and placed in the waiting taxi cab at about 10:00 o'clock.
17. Hoyt, Mrs. Neville, her sons, Raymond Neville, and the other crew member arrived at the Nichols Hospital where Hoyt presented the hospital ticket to one of the attendants. Hoyt waited for approximately 20 minutes and then inquired of one of the hospital attendants whether he should stay, and was told he need not, whereupon he returned to the boat.
18. Mrs. Neville remained in the Nichols Hospital for about five days, when, at her request, she was transferred to the Holzer Hospital at Gallipolis, Ohio. She remained in that hospital for about five days. After she left the hospital, she returned every day for treatment for a period of three weeks, and then for another period of three to four weeks she went to the hospital for treatment every other day, and finally returned for treatment every three or four days.
19. On October 30, 1950, the libellant, Buelah Neville, was admitted to the Marine Hospital in Cleveland, Ohio. She remained in the hospital until December 16, 1950. She was readmitted on March 11, 1951, and discharged on April 20, 1951.
20. During the period the libellant spent in the Marine Hospital in Cleveland, Ohio, she was under the care of Dr. Mark E. Myers, Chief of the Surgical Service of that hospital.
21. Dr. Myers' opinion was that atrophy of the muscles of the left arm was caused by the disuse of the arm following the trauma and subsequent infection which had developed. A partial amputation of the index and long fingers was recommended. She was given treatment for her left shoulder consisting of manipulation under anesthesia, which broke up the adhesions, and 80 to 90 percent motion of the left shoulder was obtained in all directions. At the time of her discharge there was considerable improvement in the motion of the shoulder.
22. On November 24, 1950, the left index finger was amputated through the proximal phalanx, and at the same time capsulotomies were performed on the metacarpal phalangeal joints of the index and long fingers of the left hand. When the wounds were healed, she was discharged, viz., on December 16, 1950, and before leaving the hospital she was given instructions in exercises by the physiotherapist at the hospital and instructed to continue these exercises after she went home.
23. On March 26, 1951, Mrs. Neville's long middle finger was amputated through the distal end of the proximal phalanx.
24. She was discharged on April 20, 1951, with instructions to continue hand and finger physiotherapy at home.
25. During the period that Mrs. Neville was a patient at the Marine Hospital in Cleveland, Ohio, she underwent treatment for various other ailments, none of which bore any causal relation to the accident of June 9, 1950.
Conclusions of Law
1. This Court has jurisdiction of this suit under Section 33 of the Merchant Marine Act of 1920, commonly called the Jones Act, 46 U.S.C.A. § 688.
2. Section 33 expressly extends to a seaman who has suffered injuries during the course of his employment the right of action which the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. confers upon railway employees. Armit v. Loveland, 3 Cir., 1940, 115 F.2d 308.
3. Consequently, negligence is the basis of an injured seaman's action for damages under the Jones Act, Armit v. Loveland, supra; and our question here is not assumption of risk as counsel for respondent seems to urge, but rather whether the respondent was negligent. Roberts v. United Fisheries Vessels Co., 1 Cir., 1944, 141 F.2d 288. See also, Tiller v. Atlantic Coast Line Railroad Co., 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610.
4. The evidence in this case does not establish any negligence of the respondent which caused or contributed to the accident.
5. Further, the evidence in this case does not establish any unseaworthiness of the vessel 'Trade Winds' which in any manner caused or contributed to the accident.
6. For these reasons, the libellant, Buelah Neville, is not entitled to recover damages from the respondent.
7. Likewise, since the right of the libellant John W. Neville to recover is contingent upon proof of a lawful claim by his wife, and since no such claim has been established in this case, the libellant, John W. Neville, is not entitled to recover damages from the respondent.
8. Therefore, judgment will be entered for the respondent.
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