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July 2, 1954


The opinion of the court was delivered by: KNOX

In this suit against the United States, Francisco Nunez, who formerly was boatswain on board the steamship William Moultrie, seeks to recover damages for an accident that came to him on January 28, 1952.

Libellant was assigned to the duty of procuring a bed spring, which at the time, was stored in space that, during the last war, had been occupied by the vessel's gun crew.

 Nunez ordered a seaman, Thomas Brennan, to assist him in the work. It appears that a number of empty fifty gallon steel drums were then stored in the gun crew's quarters. Each of them weighed about twenty or twenty-five pounds. In order to gain access to the bed spring it was necessary to remove or change the position of the drums.

 In carrying out this operation, one of the containers was caused to drop on the top of libellant's left foot. As a result the instep of that foot was painfully bruised. Apparently, there was no laceration of the skin or flesh.

 Following the accident, which occurred while the vessel was at sea, libellant was relieved of duty and his injured foot was treated with hot soaks in the ship's hospital. Several days thereafter the vessel reached London, and Nunez was sent ashore to the Tilbury and Riverside General Hospital in Essex. The foot was X-rayed but the film, so far as fractures of the bones were concerned, was negative. Libellant's injured foot was strapped and he was told to return to the hospital in three days for a further examination. This he did. He reported that his foot was more comfortable and no further treatment was supplied.

 A few days later, libellant, on board his vessel, sailed for the United States. During the course of his voyage he did no work. When the ship reached Philadelphia, he signed off as a member of the crew.

 In a deposition subsequently taken from Nunez he said that he was well treated on board the ship, and his attorney has stipulated that he has no claim against respondent for failure of the ship's company to give him treatment.

 After reaching Philadelphia, libellant, in company with two of his shipmates, traveled to New York and became an out-patient at United States Public Health Hospital on Stapleton, Staten Island, and remained such from March 38 1952, until May 14th of that year. An X-ray taken at Stapleton disclosed no bone fracture. A bandage was applied to the foot and it was subjected to physical therapy. On March 19th, 1952, a physician at the hospital observed no swelling of the foot, and his prognosis was that libellant would probably be fit for duty in two or three weeks.

 On March 28, 1952, in the course of paying a visit to the hospital, Nunez, who was walking with the aid of crutches, slipped upon some snow or ice and twisted his foot. A cast was applied to the foot at the public health hospital and it was stated that libellant would not be fit for duty for another three or four weeks. On April 21, 1954, another X-ray of libellant's foot was taken. This film disclosed that he had suffered a fracture of the left supramalleolar fibula. After submitting to further physical therapy, libellant was declared to be fit for duty on May 14, 1952.

 Libellant now claims that the empty oil drum was dropped upon his foot by Brennan. And that, due to this alleged negligence, the respondent should respond in damages.

 The master of the William Moultrie at the time of the accident was Hardal Andreasen, now thirty-seven years of age, and, as a witness, made an exceptionally good impression upon me. Although born in the United States, his parents are Norwegians. At the age of seventeen, Andreason first went to sea and worked up through the various grades of the merchant marine service. Ten years later he was awarded the papers of a Master Mariner.

 Called as a witness upon behalf of respondent, Andreason testified that, according to the vessel's log upon the day of the accident, the weather was partly cloudy, and the wind, at noon, was logged north, northwest, force 4, or at 15 to 20 knots per hour. At eight o'clock in the morning, near the hour of libellant's misfortune, there was a moderate northerly sea and swell. The vessel was rolling easily.

 Under questioning, the Master was asked, if, under the above conditions, the ship would be absolutely stable. He answered, 'No, it would not be stable. All ships roll a little bit at sea, because there is some movement of a vessel.' Inquiry was made of him as to whether the sea had been 'too rough a day to do any work on the ship'. He replied, 'According to what the log book says, it certainly would not have been too rough', and that it was not too rough to handle empty oil drums.

 As respects libellant's accident, the master was asked if he knew of the injury suffered by Nunez and he answered, 'Yes, I discussed (the accident) with him. I don't know exactly when it was, either the same day or the next day, or possibly the day after that. * * * He was down in his room and * * * I had been told that there was an accident -- that the bo'sun had an injury to his foot and I was concerned with how it happened. So I went in and asked the man what happened. He said that he had dropped an empty barrel on his foot.' Nunez denied that he told the Captain that he dropped the drum.

 'He did not say that he was carrying the barrel or had the barrel in his arms. He just said to me that he ...

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