Perion v. United Fruit Co.

Sybert, J., delivered the opinion of the Court. Appellant, William J. Perion (plaintiff below), is a merchant seaman who sustained personal injuries while on duty in the engine department of the steamship Antigua, a turbo-electric freighter vessel. His suit to recover for loss and injury against the owner and operator of the ship, United Fruit Company, appellee (defendant below), resulted in a jury verdict for the appellee. From the judgment entered against him for costs the appellant has taken this appeal.

Appellant served as a fireman-water tender. He testified that on the morning of May 9, 1957, he slipped on the floor-plates in the passageway between the fire-room and engine room of the ship due to the presence of oil and water on the floor-plates, and as a result caught the toe of his left shoe in a two-inch space between a vertical condensate pipe and the bulkhead (or wall of the passageway) on his left, causing him to strike his knee hard against the pipe and resulting in the injury. He stated that he had been ordered by a junior engineer to hurry to the engine room to speed up the feed pump located in that room, because the water gauge of the working boiler showed an absence of water, and he was hurrying back to the fire-room, where the boilers were located, to see if adequate water was being pumped to them, when the accident occurred. There were no witnesses to the accident.

The record shows that the passageway is about 12 feet long and 2j/á feet wide; that on the forward side of the passageway is a large vertical discharge pipe which bends out into ⁵⁹⁵ the passageway at about the height of a man’s head and which requires a person returning from the feed-pump to the fire-room to bear to his left at that point; that opposite the discharge pipe, on the aft side of the passageway and adjoining the aft bulkhead, is the abovementioned condensate pipe, also protruding into the passageway, and running vertically from the floor plates of the passageway up into the overhead part of the engine room. The condensate pipe itself is approximately three inches in diameter. However, there is a bend near its base which extends the pipe into the passageway an additional two inches, resulting in an open space of approximately two inches between the inside base of the pipe and the bulkhead. It was conceded that there was no metal or other guard at the bend of the pipe.

The passageway itself was illuminated by a single 100 watt bulb, according to the chief engineer, which was slightly off the center line of the passageway, 10 to 12 feet above the floor plates and 10 feet horizontally toward port from the condensate pipe. The declaration filed by the appellant contained a count based on the alleged negligence of the ship owner and a count based on the alleged unseaworthiness of the vessel. In presenting his case in the trial court, appellant sought to establish several distinct causes of the accident: (1) his slipping due to foreign matter on the floor plates; (2) the unsafe location of the condensate pipe in the passageway; (3) the unsafe condition created by the unguarded bend at the base of the pipe; and (4) inadequate lighting of the passageway. A marine engineer testified for the appellant that the condensate pipe could have been placed outside the passageway without materially affecting the efficiency of its operation.

He also stated that as a rule a metal guard is placed about an obstruction, such as the bend at the base of the pipe, in order to avoid accidents. The chief engineer of the vessel, called by the appellee, stated that it would have been possible to have placed the condensate pipe elsewhere so that it would not have been an obstruction in the passageway, but that this would have been uneconomical and less efficient. There was also conflicting testimony as to the adequacy of the lighting in the passageway, appellant testifying that it was dim, while ⁵⁹⁶ witnesses for appellee maintained that it was more than sufficient. In his own testimony appellant assigned as the activating cause of the accident his slipping on the oil and water in the passageway, thereby causing his foot to catch between the bend in the pipe and the bulkhead and resulting in the injury.

There was sharp dispute as to the presence of any foreign matter on the floor plates. Appellant stated that they were wet because the walls and floor of the passageway had been hosed down with water 15 to 30 minutes prior to the accident, and that he also saw some oil and grease on the floor plates. However, there was testimony by the second assistant engineer that the ship in question had never, to his knowledge, been washed down in its interior with a hose because of the danger involved with a totally electric power plant aboard, and that when he inspected the passageway just after the accident the floor plates were “clean and dry”. His testimony was supported by that of the chief engineer.

An attorney for appellee also testified that in an unsigned statement given to him by the appellant subsequent to the accident the seaman stated “I did not slip on anything”. Because of what appellant himself had testified—that he caught his foot in the pipe due to slipping—the trial court instructed the jury that in order for the seaman to recover on the basis of negligence on the part of the ship owner or on the basis of unseaworthiness of the vessel, it was necessary to find that there was oil or water on the deck plates which caused the appellant to slip and that the slipping was in fact the direct and proximate cause of his injuries. The court further instructed the jury in effect that only in determining whether the seaman was guilty of contributory negligence in not noticing and avoiding the oil and water on the floor plates could they consider the testimony in regard to the alleged dim lighting of the passageway, the alleged improper location of the condensate pipe with its unguarded bend and the narrowness of the passageway. As to the standard of care required of the ship owner toward a crew member under the negligence count, the trial court stated in its charge that it was “the ordinary care and caution which reasonably prudent ships’ ⁵⁹⁷ officers and other agents of the Company operating vessels of the type involved in this suit could be expected to exercise under like circumstances.” The appellant excepted to each of these charges.

The jury returned a verdict for the appellee, finding specifically, on issues presented to them in the instructions, that: (1) The ship owner was not guilty of any negligence which was the proximate cause of or directly contributed to the happening of the accident; and (2) that appellee’s vessel was not unseaworthy so as to constitute a cause of the accident. In appealing from the judgment entered on the verdict, appellant contends the trial court erred in instructing the jury, (1) that to make out a case of primary negligence or of unseaworthiness, the appellant was ■ required to establish that his injury was caused by slipping due to oil or water on the floor plates, exclusively, and that his other allegations of negligence and unseaworthiness (i.e. an unsafe pipe obstruction in the passageway and a lack of a metal guard about the protruding bend at the base of the pipe and inadequate lighting) were to be considered only for the purpose of determining whether appellant was guilty of contributory negligence; and (2) that with respect to the negligence count, the standard of care required of the appellee ship owner was ordinary care. (1) Since the accident complained of here occurred on navigable waters of the United States, this tort action is governed by the federal maritime law. Garrett v. Moore-McCormack Co., 317 U. S. 239 (1942) ; Frazier v. Waterman S. S. Corp., 206 Md. 434 , 112 A. 2d 221 (1955).

The declaration alleges the ship owner’s liability both for negligence under the Jones Act, 46 U. S. C. § 688 , and for unseaworthiness under the general maritime law. The Jones Act provides: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common- ⁵⁹⁸ law right or remedy in cases of personal injury to railway employees shall apply * * The statutes applicable to railway employees are contained in the Federal Employers’ Liability Act (F. E. L. A.), 45 U. S. C. §§ 51 et seq. Section 51 reads, in pertinent part: “Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” (Emphasis supplied.) It is the basis of appellant’s argument that in maritime law,' where there are a number of negligent or unseaworthy conditions alleged, it is not necessary to establish a single act or condition, but that the injured party is entitled to have the jury consider concurrent causes in establishing negligence or unseaworthiness. Our review of the authorities—particularly the recent pertinent decisions of the Supreme Court of the United States—leads us to conclude that the position of appellant is correct. • Determination of the negligence issue hinges in the final analysis upon the interpretation by the Supreme Court of the words “in whole or in part” of the statute herein involved.

The cases since 1939, when an important amendment was made to the F. E. L. A., 1 reveal an unmistakable trend that has culminated in a series of recent decisions which would appear to compel the conclusion at which we .have arrived. ⁵⁹⁹ Since the amendment the Supreme Court has by its decisions greatly enlarged the function of the jury and the area they may legitimately review in determining whether an employer was in fact negligent in F.E.E.A. cases, which has resulted in a reciprocal attrition of the judge’s function of deciding whether the facts are sufficient to go to the jury in such cases. For an interesting and comprehensive analysis of this trend in Supreme Court cases, see case note in 25 Tenn. Law Rev. at 287 et seq. In a recent and leading case regarding the requirement of causation, the Supreme Court has interpreted the key phrase “in whole or in part” in these words: “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * * for which damages are sought.

It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury * * *. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.” (Emphasis supplied.) Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506-508 (1957). That case involved a plaintiff railroad worker assigned to burn weeds and grass on a slope adjacent to the tracks with a crude blow-torch.

When a train approached the plaintiff remained near the flames to check the train for hot-boxes, a former duty which he had not been told to discontinue when beginning work with the flame thrower. He became enveloped in smoke and flames fanned by the passing ⁶⁰⁰ train and ran down the slope to a nearby culvert from which he slipped and fell, presumably because of loose and sloping gravel on its surface. In reversing the Supreme Court of Missouri, which had overturned a judgment based on a jury verdict for the plaintiff, the Supreme Court held that the evidence was sufficient to support the verdict and that the Missouri Supreme Court had improperly invaded the function of the jury. It also stated (at p. 503) that common experience should have been enough to put the railroad employer on notice of such an occurrence and “* * * In this view,