Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 18, 1950, in New York County, upon a verdict rendered at a Trial Term.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
1. The verdict of the jury is against the overwhelming weight of the credible evidence.
2. The court erred in charging the jury, in substance, that the contributory negligence of the plaintiff, if found, would not in any way operate to reduce the amount of his recovery. The defendant was entitled to a charge that the contributory negligence of the plaintiff might operate to reduce his damages proportionately. It is true that contributory negligence was improperly pleaded as a complete rather than as a partial defense or in mitigation of damages. However, it was made clear, before the case was submitted to the jury and in the request to charge, that the defendant sought to invoke the rule under the maritime law that the damages suffered by the plaintiff might be reduced or mitigated if and to the extent that the jury found he had been guilty of contributory negligence.
In Seas Shipping Co. v. Sieracki (328 U.S. 85), the court extended to longshoremen employed by an independent stevedoring contractor the same warranty of seaworthiness which theretofore had been applied to crew members. The court held that the obligation was essentially a species of liability without fault and was neither contractural in nature nor limited by conceptions of negligence; that for purposes of the liability a stevedore is a seaman because he is doing a seaman's work and incurring a seaman's hazards and is entitled to a seaman's traditional protection. Although the question of contributory negligence was not involved in that case, the court indicated that in a suit by a seaman based upon seaworthiness, the contributory negligence of the seaman would result in mitigating or reducing his damages (p. 94, n. 11; see, also, Socony-Vacuum Co. v. Smith, 305 U.S. 424;
The H. A. Scandrett, 87 F.2d 708, 711). In Strika v. Netherlands Ministry of Traffic (185 F.2d 555), which was based on the Sieracki case (supra), a longshoreman injured ashore was allowed recovery against the shipowner for breach of warranty of seaworthiness of the ship's tackle but his verdict was reduced 10% because of his contributory negligence. (See 64 Harv. L. Rev. 996.) The Sieracki case extended the warranty of seaworthiness to longshoremen. The learned trial court below went one step further and held that a longshoreman was completely immune from the results of his own contributory negligence. No seaman has ever enjoyed such an immunity and there is no justification, in reason or in authority, for granting it to a longshoreman.
3. The court erred in refusing to allow the defendant the opportunity to explain by competent evidence the entry in a log book (received in evidence) of a survey made three days after the accident.
4. Although, as has been stated, we believe that the verdict of the jury was against the overwhelming weight of the credible evidence, we are of the opinion that the complaint should not be dismissed. There was evidence, sufficient to warrant submission to a jury, that the condition of either or both of the winches involved in the accident contributed to its occurrence.
VAN VOORHIS, J. (dissenting in part).
I concur in the majority opinion except that I think that instead of granting a new trial, the complaint should be dismissed. At the time of this accident, plaintiff was employed by Huron Stevedoring Corporation, which is liable to him for workmen's compensation, but he has failed, as it seems to me, to establish liability on the part of defendant for his personal injuries. Such liability could only be based upon unseaworthiness of the vessel when it was taken over by the stevedoring corporation for the purpose of unloading. The only unseaworthiness claimed is an alleged defect in the forward starboard winch. All four of plaintiff's fellow employees testified that both forward winches on the vessel were in good operating condition. He himself testified that the port winch was all right, but that the starboard winch had misbehaved by jerking the loads for several hours before the accident. He testified to no occasion when this winch had started to operate while the controls were turned off. An expert witness, basing inference upon inference, testified from the fact that the steamship had just completed a seventeen-day voyage from Valparaiso, South America, that salt had encrusted contact points of the switch operating the starboard winch, and that this had caused that winch to act abnormally while in operation. He did not examine the winch, and his conclusion concerning its condition was hypothetical. Neither did he testify that this hypothetical condition would cause this winch to start up while it was turned off.
A controlling reason on account of which the complaint should be dismissed is that, assuming that the defects claimed existed in the starboard winch, the evidence, including that offered by plaintiff, demonstrates that such defects could not have caused this accident. A statement of further facts is necessary.
The vessel being unloaded was moored with her port side toward the dock. Bags of coffee were being unloaded through the bow hatchway in the center of the ship. The cable to which the load was attached ran through a pulley located over the center of the hatch on a boom which remained fastened in that position. The load was lifted from the hold in this fashion by the port winch. After this winch had raised the load high enough to be above the main deck and clear of the ...