Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
The defendant, Luckenbach Steamship Company, appeals from a judgment below entered upon a jury verdict awarding the plaintiff, Pasquale Palermo, $65,000 damages for personal injuries sustained while he was working as a longshoreman on a ship owned and operated by the defendant. The complaint alleged that the injuries were caused by the defendant's negligence in failing to provide the plaintiff with a reasonably safe place to work, and by the unseaworthy condition of the defendant's steamship, the Marine Snapper.
The evidence adduced at the trial tended to establish the following facts: On February 15 and 16, 1955, the plaintiff was employed by Turner & Blanchard, Inc., a stevedoring concern engaged in the unloading of the Marine Snapper. Palermo was in charge of a hatch gang that was unloading cargo from the aft part of the No. 2 hatch. The ship lay starboard to the 35th Street Pier, Brooklyn, and was discharging cargo on that side.
At 6:00 p.m. on February 16, the longshoremen, including the plaintiff, left the ship for "lunch." At 7:00 p.m. they again boarded the vessel, Palermo delaying a minute or two on the pier to make sure that all his men had returned to work.
The Marine Snapper, a C-4 cargo vessel, has a raised forecastle deck on which are located the forward deck house and Nos. 1 and 2 hatches. The gangway was aft at the lower level of the well deck. After boarding on the starboard side, Palermo crossed over to the port side and proceeded forward. He climbed the ladder to the forecastle deck, and then entered the port passageway, which ran between the deck house and the port rail. At the end of the passageway, flush with the forward end of the deck house, was a three-inch sill on the deck. At approximately 7:05 p.m. the plaintiff tripped on the sill and fell forward to the deck, thereupon sustaining the severe and disabling injuries to his elbow and right arm for which he here sought recovery. Palermo testified that as he approached the sill, he slipped on some oil or grease that had accumulated on the deck after a nearby winch drum had been greased by members of the ship's crew. He also testified that the two nearest bulkhead lights were off, and that the port passageway was very dark. This latter statement was corroborated by the testimony of another hatch boss who had preceded Palermo through the passageway.
On cross-examination the plaintiff testified that prior to his accident he knew that there was grease on the deck of the prot passageway and that the bulkhead lights which normally illuminated that area were out. Indeed, he had called the latter fact to the attention of one of the crew members when he left the ship at 6:00 p.m., since it was already dark at that hour.
There was further evidence that the plaintiff, after mounting the ladder to the forecastle deck, could have recrossed the ship to the starboard side by means of a three-foot thwartships passageway directly abaft the deck house, and could then have proceeded forward to his place of work through the starboard passageway, which was sufficiently lighted. Since the plaintiff's hatch gang was working on the starboard side of the ship, it appears that this route would have been no longer than the one chosen by Palermo.
There was conflicting testimony, however, as to the difficulties or dangers posed by this route. One witness for the plaintiff testified that both holds No. 2, which was forward, and No. 3, which was on the well deck just aft of the forecastle, went into operation promptly at 7:00 p.m., and that anyone thereafter walking along the starboard side might have been hit by drafts being discharged from those hatches, or might have encountered winch grease, coils, or other equipment in operation. Also, if No. 3 hold was being worked, two winchmen would be located in the thwartships passageway abaft the deck house, thus tending to impede travel by that route. However, the ship's log and the supercargo's memorandum book indicated that the No. 3 hold was not worked between 6:00 p.m. and 9:00 p.m. on February 16.
Both the port and starboard passageways, as well as the passageway directly abaft the deck house, were covered, and thus protected from unloading operations. Running across the forward end of the deck house was a narrow platform raised about two feet off the forecastle. This platform was protected from above by the edge of the bridge.
On appeal the defendant argues that the trial court erred (1) in refusing to charge the jury that the plaintiff was not entitled to any recovery if he voluntarily chose to use a passageway known by him to be unsafe and if there was another available passageway known by him to be safe; and (2) in denying the defendant's motion after trial to set aside the verdict for excessiveness.
We believe that the court below, in refusing to give the requested charge,*fn1 committed reversible error, and we are therefore remanding this case for a new trial. In view of this disposition, it is unnecessary to discuss the appellant's second contention.
Judge Learned Hand, writing for this court, said in Hardie v. New York Harbor Dry Dock Corp., 2 Cir., 1925, 9 F.2d 545, 546, a suit for negligence by the administratrix of the estate of a machinist's helper against the intestate's employer, a ship repairer: "If there be two ways, one safe and the other dangerous, the servant chooses the dangerous way at his peril, if the difference is known to him." A few years later, in a negligence action by a harbor worker against the shipowner, this court, relying on Hardie, held that "There is no duty to keep a dark way safe if a light way is provided." Long v. Silver Line, Ltd., 2 Cir., 1951, 48 F.2d 15, 16.
In the ensuing years this court, even when the defendant appeared to have been negligent, applied the doctrine of assumption of risk on several occasions to deny recovery to seamen who sued the shipowner for injuries sustained while on board but at a time when the plaintiffs were not technically "on duty." See, e.g., Holm v. Cities Service Transp. Co., 2 Cir., 1932, 60 F.2d 721; Johnson v. United States, 2 Cir., 1935, 74 F.2d 703. Subsequently, in Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265, the Supreme Court held that assumption of risk was not a defense in a suit brought by a seaman under the Jones Act, 46 U.S.C.A. § 688, to recover for injuries resulting from his use, while "on duty," of a defective appliance of the ship when the plaintiff chose to use the unsafe appliance instead of a safe method which was known to him. The Court declared that under such circumstances conduct formerly labeled "assumption of risk" was ...