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Shaw v. Lauritzen

decided: June 17, 1970.


Seitz, Van Dusen and Adams, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This case is before the court on appeal from the entry of a judgment in favor of a third-party defendant stevedoring company (T. Hogan Corporation -- hereinafter "Hogan") and against the third-party plaintiff shipowner and operator (J. Lauritzen -- hereinafter "Lauritzen") on the special verdict of the jury.*fn1 The jury had found Lauritzen liable to the plaintiff, an employee of Hogan, on the ground that unseaworthiness of the ship was the proximate cause of his fall from a ladder in the No. 3 hatch onto bulk nitrate which was being unloaded on May 31, 1963.*fn2

First, Lauritzen contends that his motion for a directed verdict at the conclusion of the evidence should have been granted. He asserts that the evidence showed conclusively that the ladder from which plaintiff fell was unsafe, that Hogan's employees knew of its unsafe condition, and that they failed to report this to their employer, Hogan, so that remedial action could be taken, thus breaching its warranty of workmanlike performance. This contention must be rejected. There was ample evidence from which the jury could have found that there was no apparent defect in the ladder because a cone of welding material concealed the fact that the rung which came off in plaintiff's hand was not attached to the vertical angle or frame of the ladder. Budd (plaintiff's gang foreman and an employee of Hogan) testified that he had been up and down the forward upper tween deck ladder in No. 3 hatch several times on May 31, 1963 (twice in the morning, a couple of times in the afternoon, between 6 and 7 P.M., and again at 7:45 P.M.), and that all the rungs in this ladder were firm and solid and were "strong enough to support any man that I have known". When he heard someone call, "Get the basket, there is a man hurt," he rushed "to the No. 3 hatch," descended the forward ladder, stepped over a missing rung, and found the plaintiff on his back with a rung of the ladder in his hand. The plaintiff said: "The rung pulled out". Also the plaintiff testified that "All the rungs looked good to me all the way down". At least two other witnesses testified that the ladder looked safe to them on the day of the accident.*fn3 The jury was not required to accept the testimony of the other two Hogan employees relied on by Lauritzen and there was no definite showing that either of the rungs which their testimony indicated was defective was the rung which pulled out in plaintiff's hand.*fn4

The cases relied upon by appellant are inapplicable to the situation presented by this record, where at least four witnesses testified that the ladder appeared to be safe. In those cases, there was no such factual controversy for the jury to decide. See, for example, Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne, 386 F.2d 193, 197 (4th Cir. 1967) ("It is undisputed that the stevedore had knowledge of the unseaworthy condition and did nothing to remedy it despite its opportunity to do so."); Mortensen v. A/S Glittre, 348 F.2d 383, 385 (2nd Cir. 1965) ("* * * the record * * * [reveals] * * * that the plaintiff, Federal's employee, noticed the oil slick almost two hours before the accident. Although he had been explicitly instructed what to do in such situations and had available to him the equipment necessary to remove the dangerous condition, he neither did nor said anything about it.").

There is no reason why the federal practice of jury determination of factual issues should not have been followed in view of the conflicting testimony in this case. See Mihalchak v. American Dredging Company, 266 F.2d 875 (3rd Cir. 1959). Cf. International Terminal Operating Co. v. N.V. Nederl. Amerik, 393 U.S. 74, 89 S. Ct. 53, 21 L. Ed. 2d 58 (1968); Byrd v. Blue Ridge Rural Elec. Cooperative, 356 U.S. 525, 78 S. Ct. 893, 2 L. Ed. 2d 953 (1958).

Second, Lauritzen contends that it was reversible error for the trial judge not to include in his charge paragraph 12 of its Requests for Charge, which provided (p. 17 of Appellant's Supplemental Brief):

"12. If you find that a dangerous condition existed with respect to the ladder rung and that two or at least one of the stevedore's employees knew of it and failed to inform the stevedore's supervisory personnel, and T. Hogan Corporation, by its employees, failed to prohibit its employees from using the ladder, and this failure contributed to cause plaintiff's injuries, then you should find in favor of J. Lauritzen on his claim against T. Hogan Corporation. Mortensen v. A/S Glittre, 348 F.2d 383 (2 Cir. 1965)."

The trial judge rejected this Request and gave in its place Hogan's Request for Charge No. 7, as follows:

"7. If you find Baskerville and Green's failure to report the condition of a rung observed is negligence under the circumstances, that negligence may be imputed to employer T. Hogan Corporation and may be taken into consideration in determining whether T. Hogan Corporation performed its work in a reasonably safe, proper and workmanlike manner."

The above Request for Charge No. 12 was worded in a confusing manner in the light of the evidence, and it was not reversible error for the trial judge to refuse to read it. See F.R.Civ.P. 61.*fn5 As noted above (see footnote 4), plaintiff and his foreman had identified the defective rung (P-3) which caused the fall, whereas Green and Baskerville may have been referring to two different rungs since they did not identify Exhibit P-3. The above language contemplates that one of these two employees knew that "the ladder rung" causing plaintiff's injury (P-3) was defective prior to the accident. The jury might well have assumed from this language, given in a charge at the end of a 17-day trial, that plaintiff and the foreman, who had testified concerning P-3, had stated that they had noticed a defect in the rung prior to the accident.

The above-quoted Request for Charge No. 7 specifically identified Green and Baskerville as the witnesses on whose testimony Lauritzen was relying.*fn6 The language used in such Request No. 7 is consistent with several appellate decisions stating that the negligence of a stevedore's employees "is a factor to be taken into consideration on the issue of breach of the * * * [stevedore's] implied warranty." Lusich v. Bloomfield Steamship Company, 355 F.2d 770, 778 (5th Cir. 1966); see, also, Bertino v. Polish Ocean Line, 402 F.2d 863 (2nd Cir. 1968); United States Lines Company v. Williams, 365 F.2d 332, 336 (5th Cir. 1966), and cases there cited.

Furthermore, the trial judge read to the jury Lauritzen's Request for Charge No. 10, which was applicable if the jury found an unsafe condition existed and ...

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