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June 3, 1958

Kenneth GRANT, Plaintiff,
The UNITED STATES of America, Defendant and Third-Party Plaintiff, George F. MeGuire, as Ship's Service Officer, and Royal Indemnity Company, Third-Party Defendants

The opinion of the court was delivered by: BYERS

This is a federal tort claim suit arising from an injury suffered by plaintiff, who fell on an uncovered exterior stairway forming part of the Ship's Service Store (to be called Store) located in a building which was a unit of the United States Merchant Marine Academy (to be called Academy) at Kings Point, New York. The defendant is the owner of the property, and the Academy. The date was January 5, 1952 at from 4:00 to 5:00 a.m., at which time it was raining.

The plaintiff was an employee of a news company and was making a delivery of newspapers, wrapped, covered and made up into two bundles weighing from 50 to 60 pounds each.

 He carried these from a truck a few feet to the head of the twelve-step stairway in question, and because of the rain he did not attempt to slide them down a chute alongside, provided for that purpose, since its surface was wet and thus would not admit of such a use. Instead he carried the bundles, one on his right shoulder and the other in his left hand, and when he had descended about nine steps he mistakenly assumed that he had reached the bottom; this caused him to step forward instead of down, with the result and he fell, struck his right knee and so injured the patella as to suffer the injury for which he now seeks recovery.

 His case is based upon the failure of overhead lights to be operating; one was at the top of the stairway and the other adjacent to a doorway leading from the platform at the foot. The lights are best shown in the diagrams forming part of U.S. Exhibit A of the Requests to Admit filed by the United States on February 5, 1958, addressed to both the plaintiff and to McGuire, a Ship's Service Officer, who is a third-party defendant.

 The stairway led from the ground level to an entrance to the Store which was operated by McGuire pursuant to the provisions of certain regulations issued by the War Shipping Administration (U.S. Exhibit B) which is a branch of the Department of Commerce of the U.S.A.

 The status of McGuire for present purposes, will be later discussed.

 The foregoing recital as to the fact and nature of plaintiff's injury, and the time and place where it occurred, and the prevailing weather conditions, are not in dispute.

 The issues of fact which will require decision are:

 1. Were the said lights in operation on the morning of January 5, 1952 at from 4:00 to 5:00 o'clock?

 It is found that they were not, for these reasons:

 Such is the plaintiff's testimony, and no one has contradicted him. Mrs. Rooney, who worked for the Store and whose job involved turning a switch in the Store to put the lights on when she closed and locked the door leading to the Store on the late afternoon or evening of January 4th, could not state more than her customary practice in that respect; she could not swear that she had turned on the lights on this occasion.

 Simpkins, a porter employed in the Store, could not remember as to whether the lights were operating when he came to work early in the morning of January 5th.

 McCormack, a patrol guard not connected with the Store, whose duty it was to generally inspect the premises, could not remember as to this particular fact.

 It is the present opinion that the plaintiff's affirmative testimony has not been impaired by all that these of the defendant's witnesses were able to depose.

 2. Was the plaintiff guilty of contributory negligence in carrying two bundles at a time instead of making separate trips for each?

 This query cannot be lightly brushed aside. It may be a fair inference that if only the plaintiff's left arm had been engaged, he could have used his right hand to grasp the chute at the instant he became aware of his error in sensing his supposed arrival at the bottom of the stair, to prevent the fall and attendant injury. If such is merely the teaching of hindsight, if can scarcely be urged against him that it was an act of negligence which played a part in the happening.

 However it is not the supposed (by him) unavailability of the chute which caused him to fall; if it had been, and he neglected, as the result of his exercise of an unwise choice, to use the means that were actually there, his own negligence would thus defeat his recovery. His theory, however, is that because of the darkness which is found to have prevailed, he missed his footing, and this would not have happened had the lights been working.

 He said that the right side of his body as he descended was against the chute which he was so using as a guide. He also said that he had been making these deliveries two or three times a week for about fifteen months, and what he did on this particular morning was in accordance with his custom when the chute was wet because of inclement weather, whereby the bundles would not slide. This is convincing for the obvious reason that the chute would serve him as a labor saving device, if the bundles and chute had been dry.

 No contention is made that it was contributory negligence for Grant to descend the stairway under the prevailing conditions of darkness; if it had been so urged, the answer would lie in his testimony that the light had been off about half the time during his fifteen months' experience, and that even under these conditions and on rainy nights, it had been his custom to proceed as he did on this occasion.

 He also testified that he had complained to Simpkins, and at the office maintained at the entrance gate, when the lights were not working. As to this, Simpkins contradicted him, as did Cornelis, who was stationed at the Gate House Office.

 A choice is made in favor of the plaintiff's testimony on this subject, for the reason that the porter Simpkins could not be expected to admit that he had paid serious attention to such complaints because if he had, and still the condition was not corrected as of the morning in question, a fault on the part of someone would have been exposed. Cornelis' testimony comes down to the fact that according to his recollection this plaintiff had never spoken to him about the absence of lights on this stairway.

 As above stated, the court accepts Grant's testimony because he was a ...

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