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Terracciano v. McAlinden Construction Co.

decided: September 28, 1973.

JOSEPH A. TERRACCIANO, PLAINTIFF-APPELLANT,
v.
MCALINDEN CONSTRUCTION CO., DEFENDANT-APPELLEE



Appeal from judgment of United States District Court for the Northern District of New York, Lloyd F. MacMahon, judge (sitting by designation), for the sum of $5,000 in favor of plaintiff-appellant.

Friendly and Hays, Circuit Judges, and Jameson,*fn* District Judge.

Author: Jameson

JAMESON, District Judge:

This is an appeal from a judgment for $5,000 entered in favor of plaintiff-appellant, Joseph Terracciano, against his employer, defendant-appellee, McAlinden Construction Co., on a special jury verdict*fn1 in a personal injury action brought by appellant under the Jones Act (46 U.S.C. ยง 688)*fn2 and general maritime law.

Background Facts

In August, 1967 McAlinden Construction Co. entered into a contract with the Sears Oil Company to deepen a portion of the Hudson River adjacent to the Sears dock at Glenmont, New York. The job was accomplished by drilling holes in the river bed into which explosives were placed and later detonated.

The drilling and loading were done from a 30-foot drilling barge on which were mounted two air-driven drills. The barge was anchored by two cables attached to anchors placed on the river bed and two cables attached to points on the river bank. It was moved by means of a winch with four drums, one for each anchor cable.

At each barge location two rows of five holes each were drilled, with the holes spaced at intervals of about five to six feet. Each hole was loaded immediately after drilling with a charge consisting mainly of Petrogel, an explosive, interlaced with prima-cord, a rope-like detonation-initiating device. Each charge was topped with a canister of Farmex, which is 50% nitroglycerin ("straight") dynamite. The holes were loaded so that the Farmex canisters would extend a few inches above the river bed.

At the end of each day the charges set during the day were detonated by electrically firing two charges. The remaining charges were set off by shock waves from these detonations, a method known as propagation.

This plan of operation was designed by Joseph McAlinden, president of appellee corporation. Merritt McAlinden, another officer of the corporation, represented the company at the job site and was there for the blasting period.

On September 18, 1967 the barge crew consisted of Donald Mathieu, barge-foreman and charge-loader for one of the drills, Alexander Elcavage, the other loader, and two drillers, Gary Purweiler and Joseph Terracciano, the plaintiff-appellant. A number of holes had already been drilled and loaded. Terracciano was having difficulty with his drill on account of loose rock falling back into the hole he was drilling. Mathieu came to his aid, assumed charge of the drill, and attempted to clear the hole by raising and lowering the drill within the hole.

At this time a 660-foot tanker, the Volvula, was approaching the barge area on its way down stream. When the stern of the Volvula was abreast of the barge there was an explosion beneath the barge. All of the charges were detonated, and the barge occupants were thrown into the air.

Appellant, who was 23 years of age at the time of the accident, sustained permanent crippling foot injuries as a result of the explosion. An attending physician*fn3 testified that appellant will always have some difficulty in walking and will never be able to stand for long periods, do any heavy lifting, or return to his former occupation as a manual laborer. He can be rehabilitated to do sedentary work, but rehabilitation presents some difficulty due to appellant's below average I.Q. and inability to read at a level higher than normal for a ...


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