The opinion of the court was delivered by: BYERS
This is a federal tort claim action in which the plaintiff seeks to recover from the United States an award of damages for physical injuries suffered by him on January 12, 1956 while he was working at Pier 3, Brooklyn Army Terminal. He was employed by American Stevedores, Inc., the third-party defendant.
The injury was caused by the falling of a metal object weighing about 125 pounds, which struck his foot causing the injuries complained of, which were serious and partially disabling.
The plaintiff and a companion (Galgano) were engaged in unloading the contents of a freight car containing boxes, crates and cartons of governmental property in the 'B' end of the car. The car number was RDG 100431 and it was 40'6" long, 8'6" wide and 8'7 1/2" high. The time of the accident was 2:30 p.m.
The unloading was initiated by the breaking of the seals on the side door of the freight car, the removal of such of the contents as were inside the door, and this was accomplished without incident; these men then started to lift down the boxes and crates at the 'B' end, and take them to the car door whence they were removed by hi-lo trucks.
They had progressed in this task until they reached the second tier from the end of the car; the top of which was about 8' above the floor.
The testimony showed that the plaintiff so manipulated one of the crates or boxes on the top of the tier that he could ease it down for convenient handling on the floor, and while so engaged with a given box, the offending metal object fell and struck his foot. It will be realized that both his hands were engaged in handling the box, and therefore the fall of the metal object could not very well be fended off in the short space of time during which he was aware of what was happening.
This recital is in accordance with the testimony of plaintiff and Galgano, and is not the subject of opposing testimony.
The right of the plaintiff to recover against the United States arises from the fact that the car was stowed at the U.S. Army Columbus Depot, Columbus, Ohio. Therefore the Government was both the consignor and the consignee and responsibility for correct stowage rested upon it.
The metal object is thus described in the testimony of the Government witness Kibler:
'One bundle Cutting Steel Edges Grader or Scraper.'
There is no testimony showing how it was wrapped, if it was wrapped at all, or that it was strapped or chocked in a firm position on top of any box or crate as it should have been. There is testimony that the customary practice was to place such an object on the floor of the car with proper lashing.
When the supporting box or boxes were moved, this object fell of its own weight and caused the plaintiff's injury. The foregoing is a finding.
In this connection, the Government argues that the fall of the metal object may have been from behind the case that the plaintiff was moving, and not necessarily from its top. That is not regarded as an important or demonstrable contention.
There is no testimony to justify the inference that the plaintiff can be charged with contributory negligence in the manner in which he sought to ease down the box which supported the offending element, for it was the same method that he had pursued during the entire time that he was working in the 'B' end of the car. Moreover, there was nothing in the appearance of the tier of crates on which he was working, ...