The opinion of the court was delivered by: BYERS
In this Federal Tort Claim action, the plaintiff asks damages for his personal injuries sustained on September 21, 1951 while he was engaged in shifting cargo on the upper level of Army Base Pier 13, Staten Island.
The complaint was filed December 27, 1951 and the action was dismissed for failure to prosecute on June 9, 1953. Thereafter, it was restored to the calendar by order dated April 19, 1954. Trial was had on October 27, 1958.
The plaintiff when injured was in the employ of American Stevedores, Inc. (American) which was brought into the cause by complaint filed May 28, 1954, whereby the defendant seeks relief against American as alleged indemnitor, in the event that plaintiff is granted a recovery.
The fact of injury is not in dispute, nor how it occurred. The plaintiff was operating a 'hi-lo' or mechanical crane on the pier; while so doing, a crate or carton fell from the top of a tier or pile of cargo elements, and struck him on the head.
If the hi-lo had been equipped with a guard extending over the driver's seat, the injury would not have occurred. So much is not in dispute.
The questions for decision are:
a. Was the defendant negligent in providing a hi-lo not equipped with a guard?
b. Was the plaintiff to be charged with contributory negligence for operating the machine known by him to be so deficient in structure?
c. Did the duty arise on the part of American, to indemnify the defendant against liability to the plaintiff, under the circumstances revealed by the evidence?
d. The nature and extent of the plaintiff's injuries.
An answer to the first question calls for some understanding of the nature and functioning of the machine which concededly was provided to the plaintiff by the defendant.
The defendant's brief may be quoted on this subject:
'That hi-lo was a gasoline-driven machine operated by controls similar to those used to control an automobile. Its specific purpose was served by a mast and boom arrangement constructed at its forward end whereby, by manipulation of additional controls by the operator, a 'carriage', to which were affixed horizontal forks or 'blades' could be raised and lowered between floor level and the upward limit of reach of the boom. The blades of the carriage were designed for insertion between the two platform elements of a pallet, and by this method the weight of the pallet and its cargo came to rest on the fork blades, and could thereby be moved about, raised or lowered, at the discretion of the operator.'
The plaintiff was one of an 'extra labor' group employed by American, whose supervisor was D'Acunto (sometimes referred to in the testimony as Sunny).
The same brief contains the following:
'At the outset of the working day, D'Acunto selected certain three-man groups of extra-labor workers with one man of each group, previously licensed by the Army authorities, designated as operator of a 'hi-lo' or fork-lift truck, the others designated as his helpers. The plaintiff was one of those assigned a machine. Assisting him were helpers, Ralph De Rosa and Carlo Liggio.
'D'Acunto assigned plaintiff and his helpers to the task of tiering, or stacking, palletized cargo on the upper level of the pier. That work involved assembling a number of cargo-laden pallets from various places on the floor of the pier and building these into stacks by vertical grouping. The stacks which plaintiff was thus instructed to build should be, according to D'Acunto's testimony, approximately 18 feet above the floor level, although the overall heights of the several stacks would vary somewhat, he said, inasmuch as the individual palletized cargo itself varied from 3 to 5 feet in height.
'To perform that work, D'Acunto instructed plaintiff to obtain a hi-lo from the yard nearby where a number of hi-los and cargo-handling equipment of various types were stored by the Army for use on the three Staten Island Terminal piers.'
It appears that the cargo which was being tiered consisted of spare parts of army trucks.
The plaintiff applied for a hi-lo to Ceserano who was an Army employee, acting as an Army Base foreman in charge of material handling devices, such as lifts and hi-los, all of which were in his custody. The foreman issued hi-lo #25 to the plaintiff (see Exhibit 1, the trip ticket) knowing that it lacked a shield or guard. He said that he did not recall any protest made by plaintiff to him for the issue of a hi-lo without a guard or shield, thus contradicting plaintiff's testimony on that subject. Also that he did not recall a telephone conversation with Sunny repeating an alleged protest by plaintiff to his own foreman, to the same effect.
He also said that he did not know the precise nature of the job to which plaintiff had been assigned on that day, and that 'low-boom' machines customarily had no guards.
It is not a cause for wonder that after a lapse of seven years he did not recall the circumstances as related by plaintiff.
The latter's version was that he protested to Ceserano against the assignment of this machine to him because of the absence of a guard; that the latter told him to take Number 25 which was the last hi-lo available, but that one with a guard would be substituted for it as soon as possible. Also that he reported this conversation to D'Acunto who in turn telephoned to Ceserano in the effort to secure a guarded hi-lo for the plaintiff.
D'Acunto corroborated plaintiff as to the latter's report to him of his conversation with Ceserano, and that the latter had said something to plaintiff about coming back later. He denied that he had spoken to ...