Before GOODRICH, KALODNER and STALEY, Circuit Judges.
The plaintiff, James Hagans, brought this civil action, founded upon the diversity jurisdiction of the district court, against Farrell Lines, Inc. ("Farrell"), to recover damages for personal injuries sustained in the course of discharging cargo from the latter's vessel, S.S. "African Dawn". Hagans was a longshoreman in the employ of Lavino Shipping Co. ("Lavino"), a concern performing stevedoring services for the vessel. His complaint alleged negligence and unseaworthiness. Farrell joined Lavino as third-party defendant, alleging in its third-party complaint that Hagans' injuries were the result of Lavino's negligence, of unseaworthy conditions created by Lavino, or of open unseaworthiness of which Lavino had knowledge and to which it "deliverately" subjected its employees. Farrell sought indemnity from Lavino in the event it was held liable to Hagans.
The matter was tried before a jury, which returned a general verdict in favor of Hagans in his action against Farrell, and against Farrell in its third-party action against Lavino. The jury also answered specific interrogatories, about which more will be said later. The district court entered judgment in accordance with the general verdict and Farrell has appealed asserting errors in the instructions given by the court to the jury and in the denial of its request for binding instructions in its favor against Lavino.
The facts may be stated as follows:
The S.S. "African Dawn", arriving late at Philadelphia, Pennsylvania, on December 4, 1951, was moored in the middle berth of the south side of Pier 98 at about 2:00 o'clock p.m. Four gangs of longshoremen were assigned by Lavino to discharge her cargo, Hagans being positioned on the pier to assist in the discharge from the vessel's No. 4 hatch, the only hatch with which we are here concerned.
To discharge the cargo, the forward booms and winches of the No. 4 hatch were rigged with the offshore boom positioned over the hatch and the inshore boom extending over the pier. The after booms were not used because the booms would have been too low for the cargo to clear the ship's rail. The winches were electrically driven. To pay out cable, the winch operator would move hand control levers forward; to raise the cargo, he would move them backward. To stop the movement, he would put the levers in a "neutral" position, which called into play an automatic brake. Because of the position of the winches, the winch operator could not see into the wings of the hold or over the side of the vessel. Consequently, he depended upon hand signals from the longshoreman assigned as a hatch tender. The system followed was for the hatch tender to stand next to the inshore coaming of the hatch while the draft was being made up in the hold, giving the signal to the winch operator to remove the draft when ready. As that was done, he would cross over the deck to the ship's rail and signal the lowering of the draft onto the pier.
When the booms had been rigged and before the first longshoreman commenced to operate the No. 4 hatch winches, a ship's electrician had completed making some adjustment to the control box on the inshore winch. The electrician told the operator, Oliver, that it was all right to use the winch, and a ship's officer was standing by.Shortly thereafter, in moving hatch covers, Oliver noticed that from time to time when he placed the levers in neutral the load would not hold fast. When he commenced to move cargo, he noticed that as the load was stopped in transit it sometimes would "drift" past his target.
A "couple" of drafts had been removed from the hold when orders were given to rig up a "save-all", i.e., a rope net spread between the vessel and the pier to catch cargo which might otherwise fall into the water as it was being moved in a sling from the hold to the pier. Oliver pulled the "save-all" up with the winch, then changed positions with his hatch tender, Harris, in accordance with a practice to rotate positions at fixed intervals. Oliver assisted in tying the "save-all" ropes at the ship's rail, and Hagans at the pier edge. After one draft had been moved, someone called to tighten the "save-all". Hagans was still engaged in tightening one of the ropes when a draft of bags of cocoa beans, weighing about a ton (which was light for the equipment), moved over the rail of the ship. Oliver had previously signalled for the draft to come out of the hold, and would have preceded the draft to the rail, except for the fact that he stumbled over a padeye welded to the ship's deck. Seeing Hagans bent over near the edge of the pier, Oliver signalled the winch operator to stop the draft and called to Hagans. The draft was then moving at its slowest speed and was about twelve to fifteen feet above the pier. The winchman immediately moved the levers into neutral, and a click was heard. However, the load "drifted" down, five or six feet of cable running off the winch drum, striking Hagans about the head and shoulders as he was about to stand up. The draft came to rest about three feet avove the pier. The time of the accident was about 3:30 o'clock p.m.
Oliver told one of his fellow workers that the winches were not "acting right" soon after he commenced to use them, and after he finished his turn at the winches, which was just before the accident, he told his hatch foreman, Collick.Harris noticed that there was a "drift" of four to five feet after he took over the winches. There was evidence that in the normal use of a winch it sometimes "drifted" because the automatic brake became loose, and that the ship's electrician would make repairs. In this instance, after the accident the ship's electrician made some repairs to the winch involved, but there was still some drift.
The winches were ship's equipment, maintained and repaired by the ship's personnel. The contract between Farrell and Lavino required the ship to supply to Lavino adequate winches in good order. There was evidence, too, that the obligation to repair the winches was upon the ship, and that the stevedores were not permitted to make repairs.
The jury, immediately prior to returning its verdict, submitted to the district judge the following questions:
"1.If we conclude that the winches were defective and were the principal cause of the accident and the employees of Lavino only incidentally negligent must the verdict between Farrell ...