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Ellison v. Sinclair Refining Co.

MAY 14, 1963.

JAMES ELLISON, PLAINTIFF-APPELLEE,

v.

SINCLAIR REFINING COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. JAMES O. MONROE, JR., Judge, presiding. Affirmed.

HOFFMAN, JUSTICE.

This is an action under the Merchant Marine Act of 1920, 46 U.S.C. § 688 (commonly referred to as the Jones Act), and under the general maritime law for personal injuries. A jury trial resulted in a verdict of $30,000 against the defendant. Upon judgment being entered on the verdict by the trial court, this appeal followed.

Plaintiff's complaint is in two counts: Count I, under the Jones Act, alleges that the defendant negligently furnished plaintiff sleeping quarters which were so defective in either design or condition of repair as to proximately cause plaintiff's injuries. Count II, under the general maritime law, alleges that the sleeping quarters were so unsatisfactory of unfit as to render the defendant's vessel unseaworthy.

The plaintiff was a deckhand on one of defendant's towboats, the Sinclair St. Louis. He was assigned a lower bunk in a certain stateroom and retired to that bunk to sleep on the night of the accident in question. The plaintiff testified that sometime after he had been asleep he was awakened, and he jumped up and hit his head on the lower part of the bunk above him; that he lay back down and felt a pain like a butcher knife in his back. He stated that as he laid there he could feel dirt and paper dropping from the bunk above upon his face. He further testified that the slats in the top bunk were tongue and groove flooring, but that they were not put together solidly and that shortly after the incident, one of these slats was missing.

The man in the top bunk noticed the following morning that one of the slats in his bunk was out. The mate testified that the plaintiff reported to him that a slat had fallen from the upper bunk and hit him, which awakened him, causing him to jump up suddenly and resulted in his bumping his forehead on the upper bunk and hurting his back. The mate and captain the morning after the accident examined the upper bunk and found that there was a slat missing and that the strip that held the slat in place was cracked and was away from the side board of the bed approximately 3/4". At the trial a civil engineer, who had made certain examinations and measurements, testified that the distance from the bottom bunk on which the plaintiff was sleeping to the top bunk was such that if the plaintiff sat up suddenly he would bump his head on the bottom of the top bunk; he also testified that a crack in the side supporting piece was 4" long and apparently went all the way through the piece; he further testified that this supporting piece would have a tendency to bend down and let the slats fall out and that if this supporting strip were pulled away 3/4" there would be nothing to hold the slat.

There was evidence from witnesses that the plaintiff the morning after the accident appeared to be in pain and had evidence of being struck over his left eye.

The defense is that "there was no evidence introduced at trial from which the jury could find that the defendant was negligent and there was no evidence introduced from which the jury could find that the vessel or appliance were unseaworthy." The defendant further argues that the jury was improperly instructed, that an exhibit was wrongfully refused admission, and that the verdict was excessive.

Under the Jones Act Congress extended to seamen the remedies made available to railroad employees under the Federal Employers' Liability Act (45 USCA sec 51 et seq.). Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S Ct 926, 931. Thus, under the Jones Act, recovery is dependent upon negligence which must be the proximate cause of the injury. Swain v. Mississippi Valley Barge Line Company, 244 F.2d 821.

Under general maritime law a shipowner has an absolute and non-delegable duty to furnish a seaworthy vessel, which is a vessel reasonably safe and fit in hull, gear, appliances and equipment for their intended use. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S Ct 872.

There is no indication upon which theory the verdict in this case rests, but the evidence regarding liability falls into two categories: (1) that relating to the type and dimension of the bunk in which plaintiff was sleeping, and, (2) the condition of such bunk at the time of the accident.

Many pages of the abstract and briefs are devoted by both sides to the development and explanation of these facts. The defendant argues: that the dimensions of the bunk do not establish that it was unseaworthy; that it was proven by the evidence of other masters that the bunk was similar to those on other river towboats; and that, therefore, the jury could draw no inference of unseaworthiness from the bunk's construction. Defendant argues, with regard to the bunk's condition, that it was mathematically impossible for the slat to fall upon plaintiff; that the slats were tongue and groove, and one couldn't fall without at least a 4" slippage; and that there was no proof of the slat's fall or of any slippage.

The plaintiff, on the other hand, points to evidence in the record showing that the side supporting strip on the bottom of the top bunk was cracked all the way through and that a sideways movement of only 3/4" would allow a slat to come down. He further points out that there is no dispute but what a slat was out of the upper bunk, and emphasizes that defendant has never offered any plausible suggestion as to how that slat came out.

Under the Jones Act, a seaman is not entitled to go to a jury by merely claiming that his injury was caused by employer's negligence. Rather, he must introduce enough evidence so that a fairminded jury might legitimately hold in his favor. Smith v. Reinauer Oil Transport, 256 F.2d 646. The test of a jury case "is simply whether the proofs justify with reason the conclusion that employer negligence played any part . . . in producing the injury." Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S Ct 443.

Under general maritime law a shipowner is not obligated to furnish the best, most modern and most convenient appliances or machinery. He discharges his full duty when he supplies proper and suitable equipment for doing the work ...


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