The opinion of the court was delivered by: BYERS
This is a motion by defendant under Fed. Rules Civ. Proc. rule 50(b), 28 U.S.C.A., for judgment in its favor pursuant to its motion for directed verdict as to which decision was reserved on April 3, 1951, when a mistrial was ordered following the inability of the jury to agree upon the answer to two of three questions submitted by the Court on the issue of liability. It was deemed expedient to seek answers to those questions before taking medical testimony concerning the nature and extent of plaintiff's injuries.
The plaintiff was in the employ of Imparato Stevedore Company which conducted the discharge of the cargo of defendant's S.S. Esso Aruba on July 6, 1947, at Pier 4, Bayonne, N.J. This required the hoisting of laden canvas slings from the ship at hatch #1, and the lowering thereof to a barge alongside, and the return of the empty sling to the ship's deck for refill below. It was the latter operation with which the cause is concerned, not the raising of the laden sling from the ship's hold, which employed gear not presently involved.
The hoisting of the empty sling from the barge required the operation of a Burton winch in connection with a boom which projected over the ship's side so as to permit the run of a fall rigged on that boom, whereby the laden sling was lowered, and the empty sling was raised. That winch is one involved in this case.
The complaint alleges in effect that this winch was defective; an unopposed amendment at the outset of the trial was granted in which it was alleged that: 'in particular a certain Burton winch at the No. 1 hatch, which was in an unseaworthy condition as understood within the Sieracki doctrine'. It was agreed that the amended pleading alleged that the defect was patent and discoverable by inspection.
The plaintiff was injured as the result of the glove on his left hand being caught on the hook from which an empty sling was hanging, at a distance of a few feet above the 3 1/2 foot bulwark, as the sling was still moving upwards. He at once called out to the winchman, and that was the first knowledge of the latter, that the plaintiff was in peril. Thus on direct (p. 15): 'What did you see right after that point?' (After the sling went down to the barge.)
He answered: 'I saw that man yelling, yelling that the hook had got him, and when I saw this danger I tried to lower the lever (of the winch), and it was too hard, and I could not stop it quickly, and before I could stop I had raised him about six feet or seven feet * * *.'
While still giving his direct testimony but following the luncheon recess, the following occurred (p. 34):
'Q. Did you see the sling do anything to him? A. No.
'Q. Did you see a hook do anything to him? A. I saw the hook catch his glove.
'Q. You did see that, didn't you? A. Yes, sure.
'Q. And then what happened after that? A. And then I tried to stop the winch, but I could not.
'Q. And when the hook caught his glove was he then standing on the deck? A. Yes.
'Q. And how much further up did this winch (sic) go before he dropped it? A. About six feet. Almost Six feet. Six feet from the bulwark.'
The difference between these two versions is quite significant. If the winchman's attention was first attracted by the plaintiff's calling out to him according to the earlier testimony, he could not have seen the hook catch the glove since that had already occurred.
Probably the difference in time was a matter of an instant or two and therefore unimportant. But whether the winchman was watching the plaintiff just prior to the engagement of the hook is of great consequence, because if he was not, the lapse of time during which the plaintiff was carried upward is to be accounted for in part by the winchman's not trying to shut down the lever until he realized the necessity for arresting the plaintiff's ascent.
It should be explained that the manner of conducting the lifting operation of the empty sling was for the plaintiff to give the hoisting signal after observing the readiness of the sling for that movement; when it had arrived at about the level of the bulwark (agreed to be 3 1/2 feet high) so that the latter could bear the weight of the empty sling when being hauled inboard, the hook of course, being above the sling, would appear first. When the hook came into sight the winchman customarily stopped the upward movement (p. 55), apparently without signal from the plaintiff.
This was accomplished by pushing down on the lever of the winch, in response to which the entire draft would come to a stop, to enable the plaintiff to haul the sling inboard; then the winch would move the draft down, for release of the hook. Since the distance between the hook in the bight of the rope holding the sling, to the bottom of the empty canvas bag was about 5 to 6 feet, that would be about the distance that the hook customarily moved upward from the time the winchman started to move the lever of the winch down, until the draft came to rest. Thus the timing of that operation called for judgment and skill on the part of the winchman and can be expressed in distance rather than in seconds. Since it was the duty of the winchman to operate the lever by grasping it, he must have looked at it, rather than at the hook on this occasion as soon as the latter reached about the level of the bulwark; from which it appears that his earlier testimony, that his ...