Circuit Court of Appeals, Second Circuit.
*375 *376 Silas B. Axtell, of New York City (Saul Sperling, of New York City, of counsel), for plaintiff in error.
Ralph C. Greene, U. S. Atty., of Sayville, N. Y., Edgar G. Wandless, Dist. Counsel for United States Shipping Board of New York City (Charles A. MacDonald, of counsel), for defendants in error.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).
The vital facts in this case were in dispute. Was the plaintiff, upon the occasion of the accident, engaged in opening the door, and, if so, was he furnished with such a defective appliance for keeping it open that the rolling of the vessel was likely to slam it suddenly and injure him, or was he closing the door, as the cook testified? If the latter, he should have kept hold of the door handle, and, had he done so, would have experienced no harm. The absence of the hook could not have affected him, if he had been shutting the door. Whether he was opening the door, and whether the only available appliance for holding it open was a safe and proper one, or whether he was closing the door, were all questions of fact for the jury.
It is argued that the fire brick was a safe door stop, and had worked well enough before; but a different inference may be drawn, and a jury ought to have been allowed to say whether the defendant should have maintained a hook on the door to hold it securely back, or whether the brick provided in place of the missing hook was a reasonably safe appliance, in view of the tendency of ships to pitch and roll in rough weather. The dismissal of the cause of action to recover indemnity was error. If the door without the hook was unsafe, the acts of defendants in furnishing an unsafe appliance would be negligent. The Merchant Marine Act of 1920 allows recovery for negligence. 41 U. S. Stat. at Large, p. 1007 (46 USCA § 688 [Comp. St. § 8337a]).
While there was evidence before the trial court that the hook was broken off before the vessel left port, so that there was some foundation for the claim that the ship was unseaworthy in equipment when she broke ground, there need be no consideration of the technical rule as to unseaworthiness. Zinnel v. U. S. Shipping Board Emergency Fleet Corp. (C. C. A.) 10 F.(2d) 47. A jury must determine whether the absence of the hook rendered the door likely to slam and injure the plaintiff, so that his equipment and place to work were not proper whether, in short, the defendants were negligent under the law of master and servant applicable to the situation disclosed in this case.
It is contended that the plaintiff assumed the risk of his employment, but it is well settled that this defense cannot apply to a case where an improper appliance is furnished to a seaman during a voyage. Zinnel v. U. S. Shipping Board Emergency Fleet Corp. (C. C. A.) 10 F.(2d) 47; Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523; Panama R. Co. v. Johnson (C. C. A.) 289 F. 964, affirmed 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748; The Colusa (C. C. A.) 248 F. 21.
The judgment is reversed.
