On appeal from the Hudson County Court of Common Pleas.
For the plaintiff-respondent, Hoberman & Hoberman (Sol Hoberman, of counsel).
For the defendant-appellant, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is the defendant's appeal from a judgment, recovered by the plaintiff in the Hudson County Court of Common Pleas, for personal injuries. The complaint comprises two counts: the first a cause of action
for damages grounded on defendant's negligence; the second is based on the claim that plaintiff as a seaman was in any event entitled to a verdict and judgment under maritime law for "maintenance and cure" as a causal sequence of his injuries. The first count is grounded on the provisions of the Federal Employers' Liability Act (45 U.S.C.A., § 51), the second on the ancient custom or tradition of maritime law.
The reasons advanced to support a reversal of the judgment are that the court erred in denying defendant's motion for direction of verdict on the first and second counts of the complaint and that the learned judge misconceived the law of the case and consequently fell into error in charging the jury.
The plaintiff was an employee of the defendant railroad company and had been such for a year prior to the accident which occurred on March 8th, 1941. He worked on its harbor boats and at the time of his mishap was assigned to the tugboat Allentown. His rating was that of "extra" tugboat captain and when not so employed he worked as a mate or a deckhand. He was paid by the day and on the date in question worked eight hours, his shift beginning at 2:30 in the morning and ending at 10:30. On the night in question the weather was inclement; the log or record of the Allentown, in this particular, read: "Strong N.E. wind and snowing and hail, rain. Frosting bad." The Allentown was engaged in moving a barge, moored at Pier B in Jersey City, New Jersey, on the north side. Just prior to the mishap the plaintiff, Dwyer, had been casting off the lines which made the barge fast to the pier. The barge had what might be called a super-structure known as a "freight house" which is almost as long and as wide as the barge itself. There is a clearance of a foot on the sides and a larger clearance at the ends. This freight house, according to the exhibits, has two doors on each of its sides to permit loading and unloading of cargo. It had been unloaded that night prior to the accident. Along the freight house from stem to stern, except at the doorways, is a steel cable probably waist high. This, a safety device, is a permanent fixture on the sides of the freight house. Across the doors which must be opened up for the operation of loading and unloading is a length of
rope, one end permanently fastened to a side of each doorway, the other end to be tied to the steel cable on the opposite side of the door.
As Dwyer was performing his duty on the night in question he walked along the side of the barge and as he reached a place near one of the doorways the barge moved slightly away from the pier and he lost his balance. In an effort to save himself from falling he grabbed for the rope line that should have been across the doorway. The rope, however, was not in place. Someone had failed to tie it to the steel cable at the far side of the door and he fell, striking his shoulder against the bottom of the door jamb. The accident occurred about half past three in the morning and he continued work until ten-thirty. The negligence charged is that the defendant failed in these particulars: to exercise ...