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January 31, 1958

Jeremiah T. PIERCE, Plaintiff,
ERIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, WILLIAM SPENCER& SON CORP. and John W. McGrath Corporation, Third-Party Defendants

The opinion of the court was delivered by: CONGER

Action by plaintiff Jeremiah T. Pierce against Erie Railroad Company for damages for personal injuries sustained by him while he was working as a longshoreman on the lighter Erie 80, owned, operated and controlled by defendant Erie Railroad Company (hereinafter referred to as 'Erie'). In his complaint, plaintiff alleged that the accident which resulted in his injuries was caused and brought about by the unseaworthiness of the lighter Erie 80. Defendant Erie denied this allegation and also set up the defense of contributory negligence.

Subsequently, defendant Erie by the service of a third party complaint impleaded third party defendants William Spencer & Son Corp. (hereinafter referred to as 'Spencer') and John W. McGrath Corporation (hereinafter referred to as 'McGrath').

In turn, third party defendant Spencer cross-claimed against McGrath. Third party defendants Spencer and McGrath have both served appropriate answers and issue has been joined as between all the parties here.

 The case came on for trial before me with a jury. At the commencement of the trial it was stipulated by all the parties that the only issue to be presented to the jury would be that of Pierce against Erie, and that the issues between Erie, Spencer and McGrath be tried to the court at the end of the trial or after a verdict had been rendered by the jury in the original action.

 The jury returned a verdict in favor of the plaintiff against the defendant Erie in the sum of $ 10,000, and such judgment has been duly entered. I have been informed that the judgment has been paid in full by defendant Erie.

 There is now before me for determination the remaining issues.

 The original stipulation was to the effect, among other things, that in passing on the issues between Erie, Spencer and McGrath, the court would consider the evidence taken in the case tried to the jury and any additional testimony later offered. Subsequently, the parties appeared before me and additional testimony was taken. So that I now have before me the question of who eventually shall be charged with this judgment.

 Defendant Erie demands that in the event a judgment is rendered against it, that it shall have judgment over against third party defendant Spencer or, in the alternative, against third party McGrath, together with reasonable counsel fees and expenses and the costs and disbursements of this action. And third party defendant, Spencer, in its cross-complaint asks for judgment over against McGrath.

 On April 9, 1954, plaintiff, a longshoreman, was working on Erie lighter No. 80 at Pier, B, Jersey City. He was in the employ of third party defendant McGrath at that time. With fellow employees of McGrath on the lighter, he was assisting in loading heavy logs on to the lighter from a vessel alongside it. The lifting of the logs from the vessel to the lighter was being done by a crane on the other side of the lighter. The crane was not owned or operated by any of the defendants here. As the crane lifted a log over and on to the lighter, it was plaintiff's job, with his fellow longshoremen, to push the log as it was lowered into the space where it was to go. The testimony was that the logs were heavy, clean and dry. Plaintiff's story (which the jury must have accepted) was that as one of the logs was being lowered, almost to the deck, he was pushing it, and as he did so he slipped on oil or grease that was there on the deck -- also described as a slick of grease or oil -- , a black grease, a black-gray grease spot, a grease spot about 12 inches in diameter. As a result of the accident, plaintiff sustained a fracture of the left heel bone with some resultant incapacity in the foot.

 When the jury returned its verdict, a motion was made by the attorney for Erie to set it aside on the ground that it was excessive. This I denied.

 The case was tried solely on the theory that the lighter was unseaworthy. No charge of negligence was made. I charged the jury, among other things, as follows:

 'It gets down solely to a question of seaworthiness of the vessel, and that gets down to a question about oil or slick or grease on the deck.

 * * * * * *

 'In order to find for the plaintiff under the theory of the case presented by the plaintiff, the jury must find that there was oil or grease on the deck of the Lighter, and that this ...

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