Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
The plaintiff, a seaman, filed suit in the court below under the Jones Act, 38 Stat. 1185 and 41 Stat. 1007, 46 U.S.C.A. § 688, to recover damages for personal injuries alleged to have been suffered by him through the negligence of the defendants. It is from the judgment entered on the verdict for the plaintiff that this appeal was taken, the trial court having denied the defendants' motions for judgment n.o.v. and for a new trial.
The plaintiff, Armit, having twenty-two years' experience as a seasman, boarded the tug "Hoodless" as her chief engineer on July 26, 1937. Shortly before the start of a tow from Philadelphia to Chesapeake City, Maryland, during which the plaintiff received the injuries for which he brought suit, he noted the absence of splash plates about the engine. He asked one Smartly, superintendent in charge of the upkeep of boats for the defendant, Loveland & Co., Inc., for splash plates or matereial with which he could make them. He was denied both. Splash plates are used to prevent oil and water from being thrown about from the rotation of the engine's crank. The tow departed a little after midnight on the morning of July 27th. The second engineer was on duty at the time, Armit not being due to take his turn on watch until 6 A.M. About 4 A.M. the second engineer awoke the plaintiff to inform him that a feed line in the engine room had sprung a leak and that water had come in over the floor plates. Armit promptly descended to the engine room and with the second engineer's assistance repaired the line. As the dynamo on the tug had broken the day before, lanterns were used for illumination and it was testified that the light was "not very good". The engine had splashed a large amount of oil all over the engine room and onto the ladder leading from the engine room to the deck above. Splash plates would have obviated this condition to a considerable extent. As the plaintiff was ascending the ladder leading from the engine room, the oil on the treads of the ladder caused him to slip and fall to the floor.
The fall rendered the plaintiff unconscious and caused injuries to his chest. He reported the accident to the captain and asked to be put ashore for treatment, but the captain requested taht he hold off until they had reached their destination. When the tug arrived at Chesapeake City, Armit reported his injury to the representative of Loveland & Co., Inc., located there and was taken to a doctor who strapped him and recommended that an X-ray be made. After the tug had returned to Philadelphia, Armit went to Loveland & Co.'s office and reported his injury to Loveland, Jr., who was vice president of that company, and to one Maguire, a superintendent of Loveland & Co., who gave Armit a hospital slip. Thereupon, he went to the United States Public Health Service for examination, where he was X-rayed and restrapped. According to the specialist at the Public Health Service, the X-ray showed a fracture of the tenth rib with no other involvement. Armit continued his duties until August 29, 1937, when, feeling the need of further examination, he went ashore at Cambridge, Maryland, to consult a physician. This doctor also took an X-ray, which disclosed fractures of the ninth and tenth ribs but no other pathology. The plaintiff continued with his duties for the defendants until December 7, 1937, when he was laid off. He was unemployed until April 4, 1938, when, without physical examination, he was employed as an assistant engineer on a boat belonging to another company. Some ten months later, upon being examined by the doctor for the latter company, Armit was disqualified for further employment because of his physical condition. Since then he has been unemployed except for a few days.
Following the accident, the plaintiff lost considerable weight, a condition which existed at the time of trial. He suffers from a deformity of the lower portion of the thorax and from emphysema of the lungs, which is described as a distention and dilation of the air cells, rendering it difficult to get fresh air into all portions of the lungs. This condition, which becomes progressively worse, is disabling. As a result, the plaintiff has been unable to engage in his regular work or in any gainful employment and will so continue in the future. In opposition to expert opinion produced by the defendants that the plaintiff's chest condition was congenital, he was allowed to prove in rebuttal, over the defendants' objection, the portion of his discharge from the army, dated February 1, 1919, which certified that he was in good health when discharged.
The jury returned a verdict for the plaintiff in the sum of $10,000, which the defendants assert is excessive. All three defendants deny liability on the ground that the evidence did not establish their negligence. In addition, Chesapeake City Towing Corporation contends that it could not be liable in any view, as it was not incorporated until two months following the accident and that the relationship of employer and employee could not, therefore, have existed between it and the plaintiff at the time of the accident.
In support of their appeal, the defendants contend (1) that their negligence was not established, (2) that the proofs were insufficient to show that the plaintiff's physical condition was a result of the fall, (3) that the certificate of the plaintiff's army discharge that he was then in good health was incompetent, (4) that the trial court erred (a) in failing to define negligence properly and (b) in submitting to the jury the question of liability as to all three defendants, (5) that the verdict was excessive, and (6) that the charge of the court contains incorrect statements. We shall consider these contentions seriatim.
The Jones Act 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. Panama R.R. Co. v. Johnson, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748. Consequently, negligence is the basis of an injured seaman's action for damages under the Jones Act. 35 Stat. 65, 45 U.S.C.A. § 51. Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L. Ed. 1082. While negligence has been variously defined, it has lately been authoritatively redefined as being "any conduct, except conduct recklessly disregardful of the interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm". Restatement of the Law, Torts, § 282. A standard of conduct established by law with respect to employers of seamen is that they shall provide their employees with a safe place in which to work. See Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 428, 59 S. Ct. 262, 83 L. Ed. 265, where a trial court's instruction to the jury to the above effect was approved. In the present case, the trial court left it to the jury to determine, inter alia, whether the defendants had breached their duty in the premises to the plaintiff. The evidence fully warranted the court's action.
The throwing of oil about the engine room and upon the ladder leading therefrom was the natural and foreseeable result of the rotation of the engine's crank in the absence of splash plates. It was equally apparent that the slippery properties of the oil made the floor of the engine room and the treads of the ladder an unsafe place upon which to step. Any thought of assumption of risk on the part of the plaintiff is not germane to the question of the ship owners' negligence in the maintenance of the unsafe condition. Assumption of risk is not even available as an affirmative defense to an action under the Jones Act. The Arizona v. Anelich, 298 U.S. 110, 56 S. Ct. 707, 80 L. Ed. 1075, and Beadle v. Spencer, 298 U.S. 124, 56 S. Ct. 712, 80 L. Ed. 1082. This is so notwithstanding that the complaining seaman's injuries are the result of his use of a known unsafe appliance or method although he had a free choice to avoid the use of it. Socony-Vacuum Oil Company v. Smith, supra, 305 U.S. at page 428, 59 S. Ct. 262, 83 L. Ed. 265.
The peculiar circumstances attendant upon a seaman's discharge of his duties were the justification for the exclusion of assumption of risk as a defense under the Jones Act. As was said by Mr. Justice Stone in Socony-Vacuum Oil Company v. Smith, supra, 305 U.S. at page 431, 59 S. Ct. at page 266, 83 L. Ed. 265 - "seamen are the wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of the common law which would affect them harshly because of the special circumstances attending their calling. * * * It is for this reason that remedial legislation for the benefit and protection of seamen has been liberally construed to attain that end." The same peculiar circumstances attending the employment alike require that the rules of the common law respecting proof of the employer's negligence be not visited too rigorously upon seamen. Stated conversely, a higher degree of care is required of the employers of seamen than is required of employers of servants for work ashore. Storgard v. France and Canada S.S. Corp., 2 Cir., 263 F. 545, 547, 548.
Judged by the standards set by law, the employers' negligence was a permissible finding from the evidence in the instant case. The plaintiff's request for needed splash plates or the material with which to make them was arbitrarily denied. As a direct consequence, the plaintiff, a seaman, had no alternative in the discharge of his duty but to put to sea without the splash plates on the engine or the correction otherwise of the condition which their absence necessarily and obviously produced. He was bound to use the equipment and appliances which his employers furnished. Storgard v. France and Canada S.S. Corp., supra.
The appellants argue, however, that their failure to prevent the throwing of the oil, by the use of splash plates, was not a violation of a duty to the plaintiff, contending that the United States inspection laws make no requirement of splash plates on the engines of boats operating in inland waters, as did the "Hoodless". Even if this were so, the want of a statutory requirement would not serve to relieve the owners from their common law duty to furnish their seamen with a safe place in which to work. See Restatement of the Law, Torts, § 286, comment f. It is immaterial to the question of negligence whether the violated standard of conduct is established by statute or by the common law so long as it is established by either. Nor does a certificate of government inspection and approval relieve the owners of a boat for a proven negligent condition thereon. The case of Panama Mail S.S. Co. v. Davis, 3 Cir., 79 F.2d 430, which the appellants cite, is not in point. There the ship owner was relieved of liability for a condition which was the direct result of his acquiescence in a governmental requirement which was carried out by qualified government inspectors. As a consequence, it was held that the ship ...