Before KALODNER, STALEY and HASTIE, Circuit Judges.
This case presents the familiar situation in which a longshoreman, injured on a ship while working for an independent contractor in unloading cargo, seeks to recover damages from the shipowner alleging both that the ship was unseaworthy and that the ship negligently failed to provide a reasonably safe place for the longshoremen to work. The accident occurred when a roll of burlap, unintentionally dislodged from the stowage by the longshoremen, fell or rolled upon a workman's ankle.
The case went to the jury on special interrogatories. The jury found that there was no inadequacy of the original stowage such as would constitute unseaworthiness and that the ship was not negligent in the performance of its duty to use due care in providing a safe place for the longshoremen to work. It was also found that both the complaining longshoreman and the stevedoring company which employed him were at fault in negligently handling the cargo. Accordingly, judgment was entered for the defendant shipowner. The injured longshoreman has appealed.
A principal assignment of error concerns the failure of the trial judge to give requested instructions on a particular theory of negligence. Appellant takes the position that, even though the cargo may have been properly stowed when the unloading began, the longshoremen broke the stowage down in such a way as to create a serious risk that, as the unloading continued, the stowage would, as it subsequently did, collapse and injure someone. In this situation, appellant argues that the jury could properly have found the ship negligent because its officers, who exercised general supervision over the unloading, failed to observe the unsafe condition thus created and have it corrected. To implement his contention appellant requested the following instruction to the jury:
"If you should find from the facts in this case that the accident was caused by dangerous or hazardous methods of discharge employed by the stevedore employees, including the plaintiff, you may find that the defendant shipowner was negligent in permitting employees of T. Hogan Corporation to engage in such dangerous or hazardous methods aboard its vessel."
The court refused to give this instruction. Later, in denying a motion for a new trial, the court explained its refusal to submit this theory of negligence to the jury, saying:
"Before the trier of fact may find such property-owner negligent, there must be evidence from which the trier of fact could conclude that the owner knew or should have known of the existence of the dangerous condition. In the case at bar, there was no evidence whatsoever from which the jury could have concluded that the defendant-shipowner knew or should have known that the longshoremen were engaging in this dangerous practice, assuming of course that they were, since the act which caused the plaintiff's injury was an instantaneous thing."
In these circumstances we have examined the evidence to determine whether a jury could properly have found that the ship's officers were negligent in permitting the longshoremen to unload the ship in a way dangerous to themselves.
The longshoremen involved furnished the only evidence in the record as to what they did in unloading the hold in which the accident occurred. The cargo in this hold consisted of cylindrical rolls of burlap, each weighing a thousand pounds or more. The individual rolls were ten to twenty feet long and varied to some extent in diameter. Most of them were two to two and one-half feet in diameter. A few were three or even four feet in diameter. The rolls were laid side by side and layer upon layer filling the hold to a height of some fifteen feet. Each roll rested in the depression formed by the circumferences of two rolls lying parallel and adjacent to each other in the layer immediately below it.
The work of unloading this hold began about 9 A.M. and the appellant was injured shortly after 11 A.M. The longshoremen began their work by unloading the burlap rolls in the center of the hold under the hatch opening to a depth, as estimated by the longshoremen themselves, of from six to eight feet, or three or four layers. The opening thus created was wider at the top than at the bottom because the marginal roll in each layer rested on and between two rolls of the next layer. Thus, each layer extended somewhat farther - about the radius of a roll - into the cleared area than did the next overlying layer. Looking upward from the floor of the cleared area the face of the stowage sloped away from the center of the hatch, like the face of a pyramid. In different metaphor, the clearing was somewhat "V" shaped.
Next, the longshoremen stood in the cleared area on the exposed top of the highest undisturbed layer of burlap, which constituted the floor of the clearing, and undertook to remove the cargo from the wings by breaking down the lateral slope of the stowage which confronted them. They proposed to begin by dislodging the top bale from the face of the pyramid and guiding it under manual restraint as gravity caused it to slide down the slope to the small cleared floor space. There, slings would be attached to the roll and lifting gear would be used to remove it from the hold.
There was testimony that as this operation began a man standing on the floor could just reach up to the middle of the top roll which was about to be dislodged. Several of the longshoremen stood in the clearing near the after end of the top roll, in order to handle it from there. Appellant stood near the forward end of the roll. Having thus disposed themselves, the longshoremen began to shift the top roll. In so doing they accidentally dislodged underlying rolls so that two or three rolls slid uncontrolled down the slope to the floor. One of them struck and broke appellant's ankle. It is this mishap which appellant would attribute to negligence on the part of the ship in failing to use due care to keep the hold a reasonably safe place to work during the unloading operation.
Beyond the longshoremen's account of what happened during the unloading operation, there was testimony by an expert witness that it was needlessly dangerous to clear out a center opening as deep as seven or eight feet before proceeding laterally to remove the upper layers of cargo from the wings. In the opinion of this witness it would have been practical and proper to clear the central area only to "man height", meaning not more than the shoulder height of a standing man. In this view of ...