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February 26, 1957

Rose POWERS, as Administratrix of the Goods, Chattels and Credits of Edward J. Powers, Deceased, Plaintiff,

The opinion of the court was delivered by: MURPHY

Defendant's motion for judgment n.o.v. raises a perplexing question of first impression under the Federal Employers' Liability Act, 45 U.S.C.A. § 51.

James Powers was a crane operator employed by defendant in its West 60th Street freight yard abutting the Hudson River. Some time in the early evening of March 10, 1949, his motionless body was discovered in the river. He was rescued by fellow employees, resuscitated, removed to a nearby hospital and expired, all in a period of either three or four hours. His widow, on behalf of herself and infant children, alleging jurisdiction under the F.E.L.A. (diversity jurisdiction being prevented by identity of citizenship) has had a jury trial on the theory, not that the deceased had drowned by reason of any negligence of defendant but rather that defendant was negligent in not effecting a more prompt rescue and because of its failure to have appropriate life saving equipment and prompt medical attendance at hand, such negligence being alleged as the proximate cause of his death.

 Certain facts were undisputed. Power's hours of employment were 8 A.M. to 5 P.M. with a stipulated accepted custom of an additional half-hour for rest, wash-up and draining his crane, if necessary. He arrived at the hospital at 7:23 P.M. and expired at 9:30 P.M. The check-out diagnosis in the hospital record was 'Submersion -- pulmonary edema.' This record also discloses that Powers was alcoholic and resisted treatment. The autopsy report by the office of the New York City Medical Examiner states that the cause of death was submersion and acute alcoholism (the brain contained three-plus alcohol).

 It was also undisputed that when he was taken from the water two fellow employees, working alternately for 50 minutes, resuscitated him and removed him to an unheated room on a pier, stripped him of his wet clothing and massaged his body while he resisted. He was then removed to the hospital in a private ambulance summoned by defendant. During this period of resuscitation there were no blankets available, no stretcher, no inhalator, no drugs and no doctor, although when he was being massaged the men applied burlap bags to his naked body.

 The facts principally in dispute concerned the time prior to the discovery of the body in the water, the time of the discovery and the cause of death. The legal problem that is posed is whether or no Powers came within the coverage of the Act.

 Two members of the crew of one of defendant's tugs who assisted in the rescue fixed the time when they were called to help at somewhere between 5 and 5:30 P.M. Another employee of defendant testified that he saw Powers' motionless body in the water about 5:40 P.M. and that it was he who called the tug. His recollection was that the tug had its running lights on and he thought it also had its searchlight lit. On of defendant's policemen fixed the time of hearing some splashing in the water and seeing the motionless form of Powers about 6:40 P.M. In one signed statement he fixed the time at 6:40 P.M. and in another at 5:40 P.M. Another employee who assisted in the rescue fixed the time of the rescue operations about 6:20 P.M. or later. This employee also testified that when Powers was rescued he had a Navy pea jacket on and that in rescuing him he used his flashlight to spot him in the water. An accident report made out by defendant at the time fixed the time at 6:40 P.M. The log of the marine supervisor of defendant indicates the time somewhere between 6:45 and 7:30 P.M.

 Another witness, a fellow employee, testified that when he reported for work that evening at 5:00 P.M. he saw Powers alive and heard him making a telephone call to a nearby tavern from the pier about 5:50 or 6 P.M. This time was corroborated by another employee who appeared on the scene to make inquiries as to who was using the 'phone. The same employee in a written statement signed some years after the event fixed the time of this occurrence at 5:05 P.M. although in another statement signed on the day of the accident he fixed it at 5:40 P.M.

 The jury was given a number of written interrogatories, the first two relating to the time element. Those interrogatories and the answers of the jury are as follows:

 '1. -- At what time on March 10, 1949, before Mr. Powers was in the water, was he last seen on dry land? 'about 5:15 to 5:40'.

 '2. -- At what time on March 10, 1949, was the body of Mr. Powers first seen in the water? About 5:45 to 6:15 P.M."

 With reference to the cause of death a doctor called by plaintiff who neither saw nor treated Mr. Powers was asked a hypothetical question and gave as his expert opinion that the cause of death was submersion and that Powers was not wrapped in blankets; that he was not put on a stretcher; that he was not kept in a warm room; that he was not given an inhalator and that he was not given certain drugs.

 The Chief Medical Examiner of the City of New York testified that after autopsy and chemical analysis of Powers' vital organs the cause of death was certified to be submersion and acute alcoholism.

 The other interrogatories submitted to the jury and their answers ...

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