request a Master's Certificate from the vessel's captain to receive treatment or gain admittance to a United States Public Health Service facility. Nevertheless, it is not necessary that a seaman possess a Master's Certificate to obtain admission to a United States Public Health Service Hospital. Admission may be obtained by the seaman filing an application stating the facts of his last employment, including the name of the vessel and the date of his service. It is alleged in his claim that when plaintiff arrived in Philadelphia, after the completion of his voyage, his feet and legs were in an inflamed condition. However, plaintiff did not attempt to obtain treatment while in Philadelphia from the United States Public Health Service Hospital which is located at 225 Chestnut Street in Philadelphia. Plaintiff was a seaman with seven years experience, and it certainly must have been known to him that health services were available. Testimony also revealed that the plaintiff's brother was a retired seaman with thirty years experience, and that on several occasions he visited his brother and found him so incapacitated that he was unable to walk. On these occasions, plaintiff's brother testified, he would aid plaintiff into his automobile and take him for a ride. It is difficult for me to comprehend that plaintiff on these occasions did not make one effort to visit the United States Public Health Service Hospital located on Chestnut Street, Philadelphia. In Norris, Law of Seamen (2d Ed. 1962) § 594, p. 685, is stated the following:
'* * * The fact that United States Public Health Service Hospitals throughout the country are open to seamen for medical treatment is so well known among them that it should preclude the argument that seafarers may be ignorant of their right to free hospitalization and medical care.'
In view of the foregoing facts, this Court finds it difficult to believe that plaintiff contracted a dermatological condition while aboard the SS ALCOA PURITAN due to its unsanitary conditions. The evidence presented lacks the primary ingredient of fact, namely, what caused the condition of plaintiff's feet.
Under the Jones Act (hereinafter referred to as the Act) the plaintiff must bear the burden of going forward with evidence on all the essential elements of a negligence action. Plaintiff must prove the existence of a duty, the negligent violation of this duty by the defendant, and finally, a causal relationship of the violation to the injury sustained. However, the Act was enacted to provide remedial and welfare legislation for the protection of a seaman and his dependents. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692 (1949). In view of the intent of Congress the Supreme Court has held that the Act should be liberally construed to accomplish its beneficial purposes. Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082 (1930).
As stated, the gravamen under the Act is negligence and the negligence must be proved by the seaman. Engel v. Davenport, 271 U.S. 33, 36, 46 S. Ct. 410, 70 L. Ed. 813 (1926). The Court is aware that fact finding does not require a mathematical certainty, and to preserve plaintiff's constitutional right to trial by jury, any evidentiary basis for making of a finding on the issue of negligence should be submitted to the jury. Schulz v. Pennsylvania Railroad Co., 350 U.S. 523, 76 S. Ct. 608, 100 L. Ed. 668 (1956). Even though the issue of negligence may be close, a court should not usurp the function of the jury. Carter v. Schooner Pilgrim, Inc., 238 F.2d 702 (1st Cir. 1956). However, it is to be noted that a mere scintilla of evidence is not enough to require the submission of an issue of negligence to a jury. Hawley v. Alaska Steamship Company, 236 F.2d 307 (9th Cir. 1956).
There must be substantial evidence offered by the plaintiff to justify submission of the case to the jury. Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 74 L. Ed. 720 (1930); Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943). After completion of the entire case, this Court was of the opinion that it had witnessed those circumstances which compelled it to direct a verdict for the defendant. The Court concluded that there was only a mere scintilla of evidence shown as to the dermatological condition, and that the plaintiff had failed to prove a causal relationship to the injury sustained. It was the firm opinion of this Court that reasonable men and women could not differ in a finding of no negligence in this case. Plaintiff did not attempt to show that the res ipsa loquitur rule should apply in his case. Johnson v. United States, 333 U.S. 46, 68 S. Ct. 391, 92 L. Ed. 468 (1948).
We have an uncontradicted fact that the plaintiff had a condition of his feet that commenced about two weeks after the inception of the voyage, but as to a history of the condition of his feet before that time the record is silent. A recital by the plaintiff to Dr. Katz, who saw him one time at his home about ten months after plaintiff had left the vessel at New Orleans, is not proof of any fact that the disease of which he complained began and developed within two weeks of the time he started his employment on the vessel. It was the plaintiff's duty to connect the origin of the disease complained of with his employer. The record is absent this proof.
I believe that a condition of the feet ordinarily referred to as 'athlete's foot' is a common disease among boys and men. Hardly a high school boy, or a college athlete, or a man in the military service, can be found who has not suffered at one time from this condition. Where, how, and when said person contracted it I am sure would be hard for anyone to explain. Was the transmission made from showers, tubs, socks, rugs, carpets, towels, floors, sand on the beach, or what? However, in a suit the proximate cause must have reasonable certainty.
As to the other points raised by the plaintiff's brief, we hold that the testimony of Protasio Herrera, a fellow seaman, and Harry Diddlebock, brother of the plaintiff, a retired seaman of thirty years experience, concerning what was usual and customary in the cleaning of shower rooms aboard ships, was inadmissible as being irrelevant and immaterial to the issue. What may have been done on other ships in so far as the cleaning of shower rooms is concerned, does not set up a standard of care, control, usage and maintenance. Two seamen, unless proven to be experts, could hardly set the standard for all ships. There was no proof whatsoever that the condition of the shower room brought about the foot ailment of the plaintiff.
As to the admissibility of the testimony that Herrera had a foot condition, there can be no doubt that this was properly excluded. He diagnosed his own condition, but did not say how it arose, when, how long he had it, nor did he describe it in detail. It is just as easy or absurd to say that this was a condition of many years standing with him.
This Court had the opportunity to observe the entire trial, to observe the competency and frankness of all the witnesses involved therein, and to apprise their demeanor. This Court was convinced that the evidence presented could in no way sustain a finding of negligence on the part of the defendant, or a finding of an unseaworthy condition on the vessel, the SS ALCOA PURITAN.
And now, this twenty-eighth day of December, 1964, in accordance with the foregoing Opinion, it is ordered that plaintiff's Motion for New Trial be and the same is hereby denied.
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