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ARMSTRONG v. COMMERCE TANKERS CORP.

July 11, 1969

Ernest A. ARMSTRONG, Plaintiff,
v.
COMMERCE TANKERS CORP. and Empire Ship Agents and Brokers Corp., Defendants



The opinion of the court was delivered by: LEVET

OPINION AND ORDER

This is a motion for judgment N.O.V. for defendants after a Special Verdict holding defendants liable to plaintiff for negligence in a seaman's action for personal injuries. A copy of the Special Verdict is hereto appended. Under Rule 42(b), liability was tried first.

Also, at the conclusion of the trial on damages in the above-entitled action (1) plaintiff moved to set aside the verdict as inadequate; and (2) defendants moved to set aside the same verdict as excessive and as inconsistent. Subsequently, the plaintiff withdrew his motion.

 In the pretrial order (p. 1) the plaintiff confined his claim of negligence of defendants to the following:

 '* * * and due to the negligence of the defendant Commerce and that Charles Darcy or some other employee of the defendant negligently slammed the door shut while the plaintiff's thumb was in it.'

 The pretrial memorandum of plaintiff stated that 'Plaintiff is not relying on the doctrine of res ipsa loquitur.' He also declared: 'Plaintiff may call Charles Darcy or any other member of the crew having knowledge of the facts.'

 On this verdict, the jury held defendants liable for negligence, but not liable for unseaworthiness, and determined that defendants had not shown plaintiff guilty of contributory negligence.

 At the end of plaintiff's case on liability and at the end of trial of that issue, defendants again moved (1) to dismiss the action for lack of proof of negligence; and (2) for a directed verdict for defendants. By reason of the jury's verdict against plaintiff on unseaworthiness, defendants did not renew the motion as to that factor.

 The court reserved decision on the motion in respect to negligence and on the motion for a directed verdict.

 The court then tried the issue as to damages to the jury, which returned a verdict for plaintiff in the sum of $ 12,000. *fn1" The defendants renewed the motions for dismissal and judgment N.O.V. with respect to negligence. Between the trial of liability and the trial of damages under the Jones Act, the parties agreed to a judgment of $ 2,000 in favor of plaintiff to cover plaintiff's other claims: (1) Wages (other than overtime) to the time of termination of the voyage; and (2) Maintenance and cure.

 Pending determination of the present motion, entry of judgment has been stayed.

 Upon a motion for a directed verdict, defendants admit every fact in evidence which tends to sustain plaintiff's case and every inference reasonably inferable therefrom. Hellweg v. Chesapeake & Potomac Telephone Co., 71 App.D.C. 346, 110 F.2d 546 (1940); Worcester, et al. v. Pure Torpedo Co., 140 F.2d 358 (7th Cir. 1944).

 The proof itself, as far as it goes, is not disputed. For the purpose of this motion the facts are as follows: to sea in 1951 and served as deck hand. to sea in )951 and served as deck hand. On April 19, 1967, plaintiff joined defendant's ship, the SS Thalia, at Singapore between 7:00 and 8:00 P.M. and was assigned by the Chief Mate to the 12 to 4:00 A.M. watch (SM 3-4).

 Plaintiff, Armstrong, started to go to sea in 1951 and served as deck hand. On April 19, 1967, plaintiff joined defendant's ship, the SS Thalia, at Singapore between 7:00 and 8:00 P.M. and was assigned by the Chief Mate to the 12 to 4:00 A.M. watch (SM 3-4).

 That night he worked as a gangway security watch from 12 midnight to 4:00 A.M., when he went to the mess hall, had a sandwich, and went below, where he slept until 5:45 (4-5). Then he assisted in taking in some stern lines to effect a change in anchorage until about 8:00 A.M. (6).

 After washing up in his forecastle, he went to visit a friend, one Charles Darcy, in a room on the port side of the ship (7). There he found Darcy, a 'white haired wiper,' and a machinist holding a 'discussion' which continued about 30 minutes, during which time the wiper talked about being a pilot. Plaintiff sat on the edge of the bunk with the door which opened inward on his left (8-9).

 Although the wiper had never flown a plane, he said he wanted to be a pilot, whereupon plaintiff suggested, 'Well, why don't you do it,' whereupon the wiper 'got mad' and plaintiff rose to leave (9-10).

 The critical episode then followed. Armstrong got up, spoke to Darcy, and turned towards the door to leave. Darcy came over to plaintiff, put his hand on plaintiff's shoulder, and said, 'Yes, you better go' (10). It must be noted here that there was no testimony that Darcy pushed or propelled plaintiff. The door opened inward.

 Plaintiff continued, 'I was stepping towards the door' (11). 'The door was open' (50). 'I lost my balance. I reached out to steady myself. I grabbed the door jamb. My thumb was in line with the door. Then the door was swung closed with force on my thumb' (11). As plaintiff said, 'The door slammed' but he saw nobody touch the door (53).

 At that time the condition of the sea was 'slight swells,' but plaintiff said the door had not moved. The machinist had left and only plaintiff, Darcy and the wiper were in the room (11).

 Although the door was not equipped with a door check (12), plaintiff said this door was the same 'as any other door going into any other man's living quarters,' and the same kind of door as on other ships (26).

 The door worked, was not broken, was 'Okay' when Armstrong opened it (26). When he lost his balance, he said he started to fall from one side the other and reached up with his left hand *fn2" and grabbed the door jamb on the side where the hinges were (30), with his thumb in the door jamb (53).

 Plaintiff denied touching the door itself and denied seeing anyone touch the door at that time (30, 31).

 At the court's request, plaintiff reenacted the accident through a demonstration at a similar door opening into the court room (49-53).

 Plaintiff said neither Darcy nor the wiper was near the door. Plaintiff could not explain how the door moved nor why it moved (53). At the time plaintiff started to lose his balance, Darcy was at his left (54). The door was at plaintiff's right. Neither Darcy nor the wiper was called to testify and no explanation as to their whereabouts or present employment was supplied.

 Thus, in brief, we have a stumble or a loss of balance by the plaintiff which resulted in the placing of his left thumb upon the door jamb a little above his hear, and a mysterious closing of the door, unexplained as to cause by plaintiff or any one else.

 The question, of course, is this: Has plaintiff shown any negligence on the part of defendants?

 Although there is no evidence that either Darcy or the wiper was closing the door, and, in fact, plaintiff's own evidence is to the contrary, plaintiff seems to claim that there is some inference, however it may be derived, that either Darcy or the wiper did something to the door. This, of course, is speculation. In any event, even if we assume that it had occurred, this fact alone does not warrant any conclusion, absent knowledge or observation that plaintiff had his thumb in the jamb, of any negligence on the part of Darcy or the wiper. Darcy or the wiper would have to have closed the door with knowledge of plaintiff's vulnerability, or would have to have acted unreasonably recklessly. No such evidence was presented.

 I.

 PROPRIETY OF A DIRECTED VERDICT

 'A directed verdict or peremptory instruction is proper when the evidence is without conflict and is such that all reasonable men must agree on one conclusion, or where the evidence is insufficient to sustain a verdict for the party against whom the motion is directed.' 65A C.J.S. Negligence ยง 251(6), p. 792; Pickering v. Corson, 108 F.2d 546 (7th Cir. 1940); Hemphill v. Mississippi Power Co., 84 F.2d 791 (5th Cir. 1936).

 II.

 BURDEN OF PROOF

 In a personal injury suit the burden of proving defendant's negligence is on plaintiff. In Martin v. United States, 96 U.S.App.D.C. 294, 225 F.2d 945, 948 (1955), C. J. Miller stated:

 '* * * We said in F.W. Wool-worth Co. v. Williams, supra, 59 App.D.C. (347) at page 348, 41 F.2d (970) at page 971:

 'The burden of proving defendant's negligence is upon the plaintiff. The mere happening of the accident does not shift to the defendant the burden of establishing that the accident did not occur through its negligence, nor does it create a presumption of negligence. On the contrary, the legal presumption is that reasonable care was exercised by the defendant. * * *"

 See also Harshberger v. Associated Transport, Inc., 282 F.2d 179, 184 (2nd Cir. 1960) and ...


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