The opinion of the court was delivered by: BONDY
This is a motion for an order setting aside a verdict for $ 109,860 rendered in an action brought by the plaintiff under the Jones Act, 46 U.S.C.A. § 688, for injuries alleged to have been sustained through the negligence of the defendant's master and granting a new trial, or directing the entry of judgment for defendant.
Plaintiff was second assistant engineer of the S.S. Lou Gehrig, operated by the defendant. The Gehrig arrived at LaPallice, France, in the afternoon of August 18, 1947. No berth then being available, she anchored two to three miles from a viaduct which extended about one mile into the sea from the shore.
About 8:00 P.M. the next day, the Gehrig docked alongside a jetty or mole at the end of the viaduct. No notices prohibiting shore leave having been posted, the plaintiff and the chief engineer, who were off duty, immediately left the ship and went ashore over the viaduct. The plaintiff testified that there was then still 'lots of sunlight'.
The viaduct was a wide structure, with steel beams alongside and overhead. On it there was a wide two or three lane roadway and alongside it railroad tracks set flush with the roadway. Walkways along both sides of the viaduct has been bombed during the last war and were roped off. There were not any lighting facilities on the viaduct.
Plaintiff and his companion stopped at a cafe at LaPallice. Thereafter they visited cafes and a casino at LaRochelle. They returned to LaPallice from there at about 2:00 A.M. in a taxicab, accompanied by other members of the Gehrig's crew who had also gone ashore. Plaintiff was not under any duty to return to his ship until eight o'clock in the morning to keep his watch.
At LaPallice, they attempted unsuccessfully to persuade a cafe which had closed to admit them for a final drink. After an argument with the cab driver about the fare, the cab left the group. Upon the approach of two policemen, plaintiff, fearing that they were about to be arrested, ran away. However, the policemen merely led the group to the entrance to the viaduct. The group then started to walk over the viaduct towards their ship. Shortly thereafter, the plaintiff reached the viaduct, and hurried ahead in order to overtake his companions. It is undisputed that it was very dark at the time.
While looking down and jogging along, the plaintiff was struck by a tender attached to a locomotive of the French National Railroads, coasting backwards down the viaduct. One of his legs was severed below the knee and the other leg so mangled that it had to be amputated. Although two of the group testified that they saw two small red lights on the leading end of the tender, the plaintiff and other witnesses testified that they did not observe any lights and that they had not any warning that a locomotive was being operated on the viaduct.
The plaintiff's testimony that he was not intoxicated at the time of the accident was corroborated by Thorpe, the chief engineer, in his deposition and was not contradicted. Other members of the crew returning from shore leave shortly after the accident, used a taxicab to take them to the ship at the end of the viaduct. The viaduct was neither owned nor controlled by the defendant. It does not appear that the Gehrig's master had any actual knowledge either of the absence of light or lighting facilities on the viaduct, or of the operation of any locomotive thereon at night when there was not any loading or discharging of cargo.
Defendant's contention that the plaintiff can not recover under the Jones Act because his injuries, suffered while returning from shore leave, were not suffered 'in the course of his employment' can not be sustained. Nowery v. Smith, 69 F.Supp. 755, affirmed, 3 Cir., 1947, 161 F.2d 732; Walton v. Continental S.S. Co., D.C., 66 F.Supp. 836. See O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596; Marceau v. Great Lakes Transit Corp., 2 Cir., 146 F.2d 416; Kyriakos v. Goulandris, 2 Cir., 1945, 151 F.2d 132. See also on the right of seamen to shore leave, Warren v. United States, 340 U.S. 523, 71 S. Ct. 432, 95 L. Ed. 503; Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107.
The defendant also contends that whether or not Wheeler was in the course of employment at the time he was injured, he failed to establish negligence on the part of the master and that even if the master had been negligent, such negligence was not the proximate cause of plaintiff's injuries. The plaintiff, on the other hand, contends that the master's failure either to prohibit shore leave or else to warn plaintiff of the allegedly unsafe condition of the viaduct before permitting shore leave constituted negligence.
Situations may arise which might require the master, in the exercise of reasonable care, to deny shore leave, as for example a virulent epidemic in the port in which the vessel is docked. See McAllister v. Cosmopolitan Shipping Co., 2 Cir., 1948, 169 F.2d 4, 7. However, it would seem entirely unreasonable for any jury to conclude that the facts in this case required a denial of shore leave.
In Farrell v. United States, 2 Cir., 167 F.2d 781, 783, the Court of Appeals for this Circuit held that a master was not under any duty to deny shore leave simply because the 'port (was) partially destroyed and under limited illumination because of conditions resulting from the war * * *.' On the contrary, said the Court, the master was bound to give reasonable recognition to his crew's right to shore leave when off duty.
Plaintiff complains of the master's failure to inspect the viaduct and to warn plaintiff of its allegedly unsafe condition.
A reasonably diligent inspection by the master, immediately after the Gehrig docked at the mole, would certainly have disclosed that the walkways were damaged, that railroad tracks were set flush with the viaduct's surface, and that there were railroad cars on those tracks at the viaduct's offshore end, and possibly that the viaduct lacked lighting facilities. All these facts were equally obvious to the plaintiff and Chief engineer Thorpe when they went ashore over the viaduct immediately after the Gehrig docked and while there was still 'lots of sunlight'. The evidence established that they in fact noticed the damaged walkways, the tracks, the railroad cars and were aware of the width of the roadway. The record is silent as to whether they also noticed the lack of lighting facilities. There was no duty upon the master to warn them of the obvious. Farrell v. United States, supra; Todahl v. Sudden & ...