Before LUMBARD, Chief Judge, and MAGRUDER and MOORE, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
Luckenbach Steamship Company, Inc. (Luckenbach), the ship owner, appeals from a judgment upon a jury verdict awarding damages to plaintiff, a longshoreman employed by Turner & Blanchard, Inc. (T & B), a stevedore. Luckenbach also appeals from the judgment of the court dismissing the third-party action against T & B as a third-party defendant.
As in almost all of the appeals in these unseaworthy-negligence*fn1 cases, reversible error (if it exists) must be found in proof improperly admitted or excluded and/or in the instructions to the jury given or refused. The factual issues are usually more critical where as here the jury may have to choose between ship owner and stevedore as to liability and the court has to consider the question of stevedore indemnification.
Plaintiff (62 years of age) on October 2, 1957, was working on a Brooklyn pier as a "slingman" engaged in unloading cargo from the S. S. Robert Luckenbach. The cargo was being transferred from ship to pier on wooden platforms ("racks") which, after being attached to the ship's "falls," were raised and lowered by a winch. The device used to secure the movable racks to the cargo hook consisted of a bridle and two spreaders. There were, in effect, two triangles of wire at the base of each of which was a wooden bar. These bars when fitted into appropriate slots on each side of the rack firmly engaged it so that when the winch operated the fall, the rack was elevated or lowered in a horizontal position. The bars had to be placed in the slots manually and this was the task being performed by plaintiff and his partner, James Ciccone, at the time of the accident.
A pile of empty racks was on the pier. One or more racks were requisitioned to be sent down for cargo. Plaintiff attached the bar on his side of the rack pile; Ciccone on his side did likewise. Plaintiff turned and walked away but was immediately struck by a falling rack containing one or more protruding nails and was injured.
The factual issue centers around the question: what caused the rack or racks to fall? Plaintiff argues that he attached his bar to only one rack (the top rack), that Ciccone did the same, that protruding nails in the second rack underneath the top rack caused the second rack to adhere to the first rack and be momentarily lifted about ten feet before breaking away and falling on plaintiff. Luckenbach's version is that Ciccone by error, or because of misunderstanding the requisition, attached his bar to the next to the top rack so that the imbalance thereby created caused the racks to fall. Here was the vital issue, first, because if plaintiff's theory of the "unseaworthy" rack and proper attachment is sustained, liability would be established. On the other hand if Ciccone, a fellow longshoreman, attached his bar to the second rack, doubt might have been cast on the nail adherence explanation of the fall and also might have affected the ship owner's liability as well as liability of the stevedore to the ship owner.
The key witnesses were plaintiff, Iorrio, a hi-lo driver and eye witness, and Ciccone. On October 3, 1957, the day after the accident, Ciccone had given a witnessed statement in which he had said, "Just before the accident happened the gangway man Aniello at No. 1 hatch asked me to send two racks on to the ship. I placed the cross batten of the sling on my side into the end space of the lower rack. * * * Anyway the both racks began to lift up and when about 10 feet higher than stringpiece, both the racks dropped off the sling and one of them hit French [plaintiff] on the head and knocked him down."
On the trial, plaintiff testified that he hooked up one rack. Iorrio, observing the scene from where he was working, said, "They both hooked up one" and he "saw two going up." Ciccone, however, when called by Luckenbach said, "I hooked up two racks" and "everything come down." "Q. They both came down? A. That's right. Q. Both of them? A. I think it was one."
Plaintiff did not see the racks fall; Iorrio was driving the hi-lo. Thus Ciccone was the only person participating in the operation who saw what happened. On May 22, 1958, over six months after the accident, Ciccone gave another witnessed statement, introduced as plaintiff's exhibit No. 5, wherein he said, "We had hooked up one rack and walked away from underneath then I noticed that one was caught underneath. This rack fell from about 10 or 15 feet in the air."
The frailties of observation and memory are well known. From this important witness came inconsistent statements and uncertain testimony. In his first statement (the day after the accident) he had hooked up two; six months later, one. On the trial, first he saw two fall, then one. The importance which the jury placed upon Ciccone's testimony appears from a request (Court Exhibit No. 4) made more than six hours after they had commenced their deliberations. "The jury would like to hear all of Jimmy Ciccone's testimony." This followed a previous request, "What did Jimmy Ciccone say with respect to the number of empty pallets he hooked up and what else did he say after being cross-examined on the point?" (Court Exhibit No. 3.)
Despite receiving the May, 1958, Ciccone statement (Exhibit No. 5) and despite many attempts of Luckenbach's counsel to introduce the October 3, 1957, statement, the trial court excluded it. Such exclusion of a vital inconsistent statement constitutes reversible error. Cross-examination from this statement might seriously have affected Ciccone's credibility in the minds of the jury. It is not clear whether exclusion was based on assumed lack of hostility, impeachment of one's own witness, or lack of inconsistency. Even assuming, however, the exclusion of this statement was not an abuse of discretion under federal decisional law (see United States v. Allied Stevedoring Corp., 2 Cir., 1957, 241 F.2d 925), the trial judge should have admitted the statement pursuant to Section 343-a of the New York Civil Practice Act, which is applicable by virtue of Rule 43(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and which allows a party to impeach his own witness with a prior inconsistent statement when it is in writing and either subscribed or sworn to by the witness. On the record as a whole a sufficient foundation for its admission was laid. The Charles Morgan, 1885, 115 U.S. 69, 5 S. Ct. 1172, 29 L. Ed. 316; United States v. Dilliard, 2 Cir., 1938, 101 F.2d 829, certiorari denied 1939, 306 U.S. 635, 59 S. Ct. 484, 83 L. Ed. 1036.
The error was further compounded by another evidentiary ruling which diminished the likelihood that Luckenbach's view of the facts would be fairly considered by the jury. Considering the equivocal answers given by Iorrio regarding the nature of his crime and the importance of his testimony, the court should have received the official record showing the precise crime of which he had been convicted for the purpose of attacking Iorrio's credibility.
Luckenbach also premises error upon the trial court's refusal to admit an accident report apparently made the day of the accident by an employee of T & B, the impleaded third-party defendant, which allegedly supports its theory that two racks fell. The report is admittedly hearsay, but Luckenbach contends that it is admissible under the Federal ...