The opinion of the court was delivered by: KNOX
Libelant, about 61 years old, is an unschooled, dull-minded Negro. He lacks ability to give a clear circumstantial account of the accident, underlying this suit. His testimony, in connection therewith, is confused and difficult to reconcile. For thirty years, he has been employed as a stevedore by New York and Cuba Mail Steamship Company.
John T. Clark & Son, Inc., a stevedoring concern, performs such work in and about the harbor of New York.
At the time here involved, McAllister Lighterage Line, Inc., owned and operated the lighter, Tyler, in charge of Lars Larsen. He had been her captain for six years, and has worked on lighters, on and off, for forty years.
Amidship on the Tyler, there is a hoist, or 'stick', whereby Larsen, through the aid of other mechanical appliances, could lift cargo from the deck of the lighter, and swing it to piers alongside which she moored.
Hereinafter, the aforesaid corporations will be designated as Cuba Mail, Clark, and McAllister.
On February 13, 1956, Clark, pursuant to an oral contract with McAllister, loaded the Tyler, at Pier 92, North River, New York, with the following freight, from off the steamship, Parthia:
15 unpacked Land
(automobiles) 41,625 pounds
1 C/S Land Rover 1,165 "
1 C/S Diesel Engine 4,592 "
1 New (unpacked)
Jacquar 3,053 "
2 C/S Textile 11,892 "
20 C/S Land Rovers 89,600 "
The above mentioned cases or crates were of a 'knock-down' type, made of pine wood. There is no proof as to their actual construction.
Thomas Puleo, an employee of Cuba Mail, was at Pier 92, and checked the cargo as it was put on the Tyler. He was not called as a witness. However, a checker at Pier 36 noted that some of the unboxed vehicles were scratched and dented, but observed no injury to any of the wooden cases.
Larsen made no inspection as to the condition of the freight, or its containers. His only concern was to see that the cargo, when put aboard the lighter, 'would not fall overboard', or make it impossible for him to have access to the rails of the Tyler.
Upon completion of the loading operations at 6 o'clock p.m., Larsen left the lighter at Pier 92 and went home.
Under an oral agreement between Cuba Mail and McAllister, the latter was to transport the freight from Pier 92 to Pier 36, where it was to be discharged by stevedores of Cuba Mail, and forwarded to destinations in Cuba and Mexico.
During the night of February 13, the lighter was towed to Pier 36, and, upon navigable waters, was moored on its northerly side, bow-in, towards the Manhattan shore. Larsen boarded her there on the morning of February 14th. Nothing of incidence seems to have transpired on that day, and at 5 o'clock p.m., Larsen again went home. He is without knowledge at to what, if anything, happened to the cargo, during his absences.
At 8 o'clock a.m., on February 15, Larsen was again on board the Tyler, and a gang of six stevedores, including libelant, employed by Cuba Mail, went on her deck to discharge the cargo. Joe Caccio, now deceased, was its foreman. During unloading procedure, a light rain fell, .04 of an inch.
In a housing, about amidship of the lighter, Larsen stationed himself to handle the levers of the cargo hoist.
According to libelant, the cases of freight were stowed closely against each other. On their bottoms, and near their respective ends, there was a groove, or cut out. Thus, the metal cables of cargo slings could be slipped beneath the cases without difficulty. But, due to the manner in which the boxed freight had been stowed, there were insufficient spaces between the cases to enable them to be encircled by the lines of the cargo slings, and thus be lifted from the lighter, and swung to the pier.
In order that this might be accomplished, Caccio directed libelant to get on top of the cases, and pry them apart from each other, with a crowbar. As respects seven or eight of the containers, libelant did this successfully. In each such instance, when the slings were properly adjusted, he signaled Larsen, and the case was lifted from the Tyler, and landed on the pier.
Finally, Reddick came to two cases stowed athwart the forward portion of the lighter's deck. Each of them was about 14 feet in length, and 5 feet high, one piled on top of the other. This gave them a total height of 10 feet above the deck of the Tyler, and the tide being high, about 15 feet above the floor level of the pier.
A similar tier of cases seems to have been stored forward of, and closely against, those of the first tier. There is no certainty as to whether libelant, in performing his work, was on top of the upper case of the first, or the second, tier. In either event, his purpose was to pry apart the two upper cases, get the sling lines around the upper case of the first tier, and thus enable it to be swung to the pier.
In making this effort, libelant lost his footing, and plunged to the floor of the dock, fracturing the internal malleolous of his right ankle, and right shin bone.
On April 19, 1956, libelant filed a libel in personam against McAllister, seeking recovery of damages arising from his injuries.
The gravamen of the libel is that such injuries were due solely to McAllister's negligence * * * ; its failure to take any means or precautions for his safety, and was otherwise careless and negligent, and that, by reason thereof, the Tyler was unseaworthy.
McAllister, in addition to pleading a general denial of libelant's allegations, avers that libelant's injuries were caused by faults of persons for which it is not liable, and that Reddick's own negligence accounted for his accident, or contributed thereto. The answer sets forth other alleged defenses, unnecessary to mention.
McAllister, subsequent to filing its answer, impleaded Clark and Cuba Mail, charging each of them with responsibility for libelant's mishap, and asking that they indemnify it for any damages assessed against the owner of the Tyler.
Each impleaded respondent denies the allegations made against it by McAllister.
Upon the trial, and during the examination of Larsen, he was asked, and answered, the following questions:
'Q. Captain, some of these cases were very heavy? A. Yes.
'Q. What is your practice in loading these heavy cases on board your lighter? Do you put * * * dunnage between them so that you can get a sling around them and remove them? A. Most of the cases have dunnage on it. They have heavy scantlings underneath the case, for the heavy ones * * * so you can get slings underneath.
'Q. Were the cases stowed on your deck close together? A. Well, some were close, and some were far apart.
'Q. Did you use any scantlings in loading this cargo? A. I don't recollect that, because that is a thing I have nothing to do with. That is up to the stevedore, if he wants to put scantlings, some do, and some don't.
'Q. Did anybody put scantlings between these cases when they were loaded on your barge? A. Well, most of the time they do, but I could not recollect if they did it on some of these cases.'
In addition to the foregoing, the witness was asked, and answered, these questions:
'Q. Now, in your experience, isn't it customary to leave spaces between cases ...