December 10, 1946
Before SWAN, CLARK and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The judge's opinion and findings state facts which justify his legal conclusion as to appellant's negligence. The evidence amply supports the judge on that issue of fact. It should be obvious by now that we will not consider appellant's contentions which relate to the credibility of witnesses who testified in open court.*fn1 The judge correctly computed the wages lost by appellee and the medical expenses. We see no reason to change the amount of the award for pain and suffering.*fn2
2. But there remains the question of contributory negligence. The judge held that appellee was not negligent. This the judge correctly categorized as a "Conclusion of law." For we have held that whether or not one has been negligent is a "question of law," i.e., a question whether he has measured up to a legal standard. To answer that question, it is necessary, first, to ascertain the facts, i.e., what the person did or did not do; accordingly, we recently said (per Judge Learned Hand), that if a trial judge holds a party "not negligent" that is not a "finding of fact" which "we must accept unless 'clearly erroneous.'" Barbarino v. Stanhope S.S. Co., 2 Cir., 151 F.2d 553, 555.*fn3 In order, then, to sustain the judge's conclusion in the instant case that appellee was not negligent, we must either (1) have a finding by the judge, supported by substantial evidence, of facts from which we would be obliged to rule that his legal conclusion of non-negligence was correct or (2) evidence so plain that we ourselves could not reasonably avoid making such a finding.The judge made no finding of fact whatever on this issue. The evidence with respect thereto is not clear. On cross-examination, appellant seems to have answered the same question in two different ways:
"Q. You say that oil and grease had been there? A.Yes.
"Q. In that very spot? A. All over the winches.
"Q. I mean, the oil in which you slipped had been there for some time, had it? A. Oh, sure, it was some time.
"Q. When did you first see it there? A. The first day when I come in to work.
"Q. The first day when you came in to work? A. Friday.
"Q. The very spot in which you slipped you saw when you first went to work? A. Not the very spot. I slipped near to that place.
"Q. When did you first see the oil in which you slipped? A. Between the winches.
"Q. When did you first see it? A. The first day when I came in to work.
"Q. The first day when you came to work? A. Yes.
"Q. That is, the very oil in which you slipped you saw when you first came to work? A. Yes."
The explanation of this ambiguity may be that, as the judge said in his opinion, appellee is 68 years old and consequently was confused - as well he might be at that age, unused as he apparently was to court-room methods of interrogation, especially on cross-examination.*fn4 The following is an illustration of his confusion:
"Q. Are you sure, Mr. Kreste, that the oily condition of the deck of this ship which you described was there the entire time you were working on the ship? A. Why, sure.
"Q. You saw it when you first went aboard? A. Yes.
"Q. It remained the same for the entire time you were there? A. Who? You mean my partner?"
Appellant makes much of the fact that, appellee, to protect his feet from water which ran from the winches,*fn5 covered with a piece of dunnage the spot where he was working, and asserts that as there was plenty of dunnage available, he should also have covered all the surrounding area to avoid the danger of slipping on the oil. The judge, by his questioning and comments, indicated that, on the facts, this was was an unreasonable suggestion.*fn6
This court, not a trial court, is always reluctant to engage in fact-finding when the trial judge saw and heard the witnesses. To "The end that injustice may not be done,"*fn7 we think it best to remand the case for a special finding of fact on the issue of contributory negligence, so that the trial judge will be able to interpret the testimony. "It is familiar appellate practice," said the Supreme Court in Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 373, 59 S. Ct. 301, 306, 83 L. Ed. 221, "to remand causes for further proceedings without deciding the merits, where justice demands that course in order that some defect in the record may be supplied. Such a remand may be made to permit further evidence to be taken or additional findings to be made upon essential points." See also Railroad Commission of Wisconsin v. Maxcy, 281 U.S. 82, 50 S. Ct. 228, 74 L. Ed. 717; Interstate Circuit, Inc. v. United States, 304 U.S. 55, 58 S. Ct. 768, 82 L. Ed. 1146; Militano v. United States, 2 Cir., 156 F.2d 599, 603.
The judge should make findings as to whether or not Kreste had, on the very day of the accident, seen oil on the deck near the place where he slipped; and whether, if he had not then seen, he should, because of knowledge that oil and grease was put in the winch in excessive quantities several times a day in the course of each day, have been aware of the danger of slipping and, in the exercise of reasonable care, have looked before he stepped. On the basis of his findings, the judge will make his decision. If he finds appellee negligent, he should apportion the damages. See Stokes v. United States, 2 Cir., 144 F.2d 82, 87-88; cf. The Max Morris, 137 U.S. 1, 15, 11 S. Ct. 29, 33, 34 L. Ed. 586.
Reversed and remanded.
CLARK, Circuit Judge (dissenting).
An experienced trial judge who saw and heard the witnesses has made findings which seem to me rational and permissible on the record; and in accordance with our repeated expostulations, I believe we should accept them and affirm. We cannot have any doubt as to his views. He states that he believed the libellant, who "made a good impression on the Court," thereby necessarily rejecting the testimony of respondent's witnesses who asserted an entire absence of oil on the decks. He considered several times during the trial the possibility of dividing the damages, and rejected it in saying that "libellant was free from negligence" and that the accident and injuries "were caused solely and exclusively by reason of the negligence and carelessness of the respondent" and its agents. To return the case for further cross-examination of the judge seems to me an unnecessary glorification of procedural formalities. The opinion omits reference to the libellant's sworn answer to an interrogatory, "Libellant did not notice the oil until after he had fallen," which, I believe, indicates the rational explanation of the evidence if more is needed. A condition of careless inattention to oil can hardly transfer all responsibility to a worker, so that he is at all times charged with notice of an oil spot which he has not noticed at the moment. But if I am wrong in this, I should think it preferable to accept full responsibility for decision and order reversal here.