Appeal from the District Court of the United States for the Western District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is a suit in admiralty brought against Great Lakes Transit Corporation, the owner of the steamer H. A. Scandrett, to recover damages for injuries suffered on November 13, 1933, by Sellon, a mate and member of the crew, because of the alleged neglect of the corporation to furnish him with a properly fitted and seaworthy door and appliances thereon. The libel contained two causes of action, the first to recover damages under the maritime law for injuries resulting from the unseaworthiness of the door and its appliances, and the second to recover the amount due the libelant for maintenance and cure. It alleged that, when Sellon was proceeding from the wheelhouse to his quarters and had arrived at the door leading to such quarters, he tried to open it but the knob gave way and as a kresult he was precipitated toward a hatch, his right hip struck upon a hatch clamp, and his injuries resulted.
The suit, though brought in admiralty, was tried before Judge Rippey and a jury under the so-called Great Lakes Statute, 28 U.S.C.A. § 770. The jury found that the libelant was entitled to recover $21,166.67 upon the first cause of action, less 30 per cent. found to be deductible because of his contributory negligence, leaving a balance of $14,816.67, and that he was entitled to recover $683 upon the second cause of action for maintenance and cure. From the part of the judgment upon the verdict representing a recovery upon the first cause of action the respondent appeals. We think that the judgment should be affirmed.
The Scandrett was a steamer engaged in carrying freight on the Great Lakes and when Sellon was injured was on a voyage from Duluth to Buffalo. He had been on watch between midnight and about 6:15 a.m. on November 13, 1933. According to his testimony, when he was coming off watch to go to his quarters, he tried to pass through the door which opened from the deckhouse, where his quarters were situated, on the starboard deck. The door was stuck and hard to open. He said: "I turned the knob and pulled on it several times as hard as I could pull it, and finally the knob pulled off, and I went backwards * * * and I fell on No. 2 hatch, striking my right hip on the clamp on the forward corner of No. 2 hatch."
He offered testimony tending to show that as a result his hip became black and blue and painful, that soon a lump appeared where he had struck his hip on the hatch clamp, and that he was advised to have the growth removed. It proved to be a malignant tumor known as a sarcoma, from which he died shortly after recovery of the judgment in this case.
Sellon's story of the pulling off of the doorknob was confirmed by the testimony of Norman Graham, Clyde Hickman, and donald Morrison, members of the crew of the Scandrett. Medical experts testified that the sarcoma was caused by his striking his hip on the hatch when the door handle gave way.
McGillevery, the master of the Scandrett, testified that at the time of the accident Sellon never mentioned having any trouble with the door or knob, but the next day said to him: "It is a wonder that hatch clamp didn't go through my hip. I fell on the ice and hit my hip on the hatch clamp."
The respondent adduced testimony to the effect that the doorknob could not have been pulled off, and indeed it is impossible to see how a knob like the one produced should not remain fast if it was screwed up to the shoulder. But the door was not produced and the knob which was put in evidence was not identified other than by evidence which was at best hearsay as having been on the door at the time of the accident. Moreover, even if the knob which the jury found was pulled off by Sellon was the one produced at the trial, the jury was not obliged to find that the knob and lock were still in the same condition and had not been repaired nor fitted with new parts since the accident. But, whatever may have been the cause for the pulling off of the knob, a jury might find that a steamer having a door so stuck or jammed that an unusual force had to be applied to open it and a doorknob that gave way under the strain of pulling was an unseaworthy vessel and that the unseaworthiness was the proximate cause of libelant's injuries.
Judge Rippey submitted special questions to the jury in answer to which it returned a special verdict. Their answers were:
(1) The accident and injury occurred in the way libelant has asserted.
(2) The respondent failed in its duty to furnish libelant a vessel on this voyage which commenced at Duluth on November 12, ...