The opinion of the court was delivered by: GALSTON
In conformity with the opinion in this case, I make the following findings of fact and conclusions of law:
1. This action was brought pursuant to the Federal Tort Claims Act, 28 U.S.C.A. § 1346.
2. On the 28th day of January, 1948, the United States Maritime Commission entered into a contract with McGinnis & Timmins, third-party defendant, for the purchase by McGinnis & Timmins of certain mattresses owned by the United States Maritime Commission.
3. The contract provided for the purchase of the mattresses in an 'as is -- where is' condition.
4. The contract further provided for the indemnification of the United States of America by the purchaser against any tort claims arising out of the performance of said contract.
5. On February 16, 1948, plaintiff, a partner in the firm of McGinnis & Timmins, appeared at Pier 4, Hoboken, New Jersey, pursuant to the terms of said contract.
6. Pier 4, Hoboken, New Jersey, then was and now is owned, operated, maintained and controlled by defendant, United States of America.
7. At Pier 4, Hoboken, New Jersey, there then was and now is a freight escalator also owned, operated and maintained by defendant, United States of America, leading down from the second floor of a warehouse located at said pier.
8. Following his appearance at said pier and said warehouse, plaintiff took a position at the foot of said escalator and commenced the process of unloading the aforementioned mattresses from the escalator, as they reached the first floor from the second.
9. William Joyce, an employee of the United States Maritime Commission, operated the escalator.
10. At some time during the process of unloading the mattresses from the escalator, plaintiff placed his foot on the escalator.
11. The placing of plaintiff's foot on said escalator was his own free and voluntary act.
12. There was no necessity for plaintiff to place his foot on the escalator in order to ...