The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This action was originally brought on, as an action at law, in the Supreme Court of the State of New York, Kings County, and was removed to this Court, because of diversity of citizenship.
This action, which was for damages for personal injuries was tried before the Court without a jury.
At all the times hereinafter mentioned, and at the time of the trial, the defendant was a foreign corporation duly organized and existing under the laws of the State of Nevada, with offices in the Borough of Manhattan, City and State of New York, for the transaction of its business in the State of New York.
At all the times hereinafter mentioned, and at the time of the trial, the defendant was the owner of a certain steamship or vessel, known as the American Banker.
At all the times hereinafter mentioned, the defendant was in possession, and control of the aforementioned steamship or vessel.
At all the times hereinafter mentioned, the defendant was a common and public carrier for hire of both passengers and freight.
At all the times hereinafter mentioned, the plaintiff was a passenger, for hire, of this defendant on the aforementioned steamship or vessel.
The steamship American Banker left New York City on May 13th, 1938, bound for London, England, with the plaintiff on board as a passenger.
The plaintiff's heart had, prior to and at the time of sailing, showed evidence of coronary sclerosis, that is the heart muscle was getting inadequate blood supply. She had been upset and had been in bed for three weeks and thereafter had been up for about three weeks before sailing. A checkup by her Doctor, to determine whether it was alright for her to take the trip, showed her heart condition so satisfactory that she might take the trip. Her Doctor prescribed nitroglycerine tablets and also phenobarbital tablets. The phenobarbital tablets were to allay any kind of strain there might be on the heart in case of any undue excitement, or anything else that might occur. The nitroglycerine tablets were essentially dilators and were to be taken after each meal.
There is a conflict in the evidence as to whether plaintiff had been confined to her bed with sickness aboard the American Banker, but, I will accept the plaintiff's version that the steward and stewardess are mistaken, and that it was a room mate of plaintiff, and not herself, who was sick. Plaintiff had been advised to rest and she did so, finding pleasure, and making new acquaintances, but refraining from engaging in any sports requiring unusual activity.
The voyage proceeded without any unusual incidents, in so far as plaintiff was concerned, until the 23rd day of May, 1938. On that day plaintiff arose at about 7 o'clock A.M., and at about 8 o'clock A.M. went to breakfast. After finishing her breakfast, at about 9 o'clock A.M., the plaintiff returned to her cabin, straightened things out, finished packing, and made ready her luggage.
After that she went out on the boat deck, dressed ready for landing, and wearing a fur coat and felt hat. Plaintiff had been talking to, and exchanging good-byes, with a number of people she had met during the voyage. She undoubtedly was somewhat excited, as is natural under such conditions, so much so, in fact, that she had forgotten to take her pill after breakfast.
The American Banker had, at that time, entered the lock, through which she was obliged to pass to reach berth or shed 22, ...