Opinion
No. 85.
November 18, 1943.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Annie W. Thunberg, as administratrix of the estate of Gustav Thunberg, deceased, against the Panama Railroad Company for the death of decedent allegedly resulting from negligence of defendant in failing to furnish decedent with a safe place in which to work, and based on defendant's negligence in failing to give decedent adequate treatment after sustaining injury. The second cause of action was dismissed, defendant's motion to set aside verdict for plaintiff on first cause of action was dismissed, and defendant appeals; and, from the order dismissing her second cause of action, plaintiff appeals.
Affirmed.
Plaintiff suing as widow of Gustav Thunberg, a refrigerating engineer, employed by defendant on board a vessel owned by it, in her complaint set forth two causes of action, the first for damages caused by the death of the decedent through negligence of defendant in failing to furnish him with a safe place in which to work, the second for negligence of defendant in the failure to give decedent adequate treatment after he had sustained an aggravation of a pre-existing hernia. The trial was before a jury. At the close of plaintiff's case, the court, on motion of defendant, dismissed the second cause of action. Evidence was introduced at the trial of pain and suffering by the decedent, and the trial court permitted plaintiff to amend her first cause of action to conform to the proof so as to allege damages for such pain and suffering. The trial judge denied defendant's motion for a directed verdict. The jury returned a verdict of $8500 for the death and $1500 for pain and suffering. The trial judge denied defendant's motion to set aside the verdict and entered judgment for plaintiff on the verdict. From that judgment defendant appeals. Plaintiff appeals from the order dismissing her second cause of action.
Silas Blake Axtell, of New York City (Lucien V. Axtell, of New York City, of counsel), for plaintiff-respondent-appellant.
Wayne Johnson, of New York City (Thomas J. Maginnis and Arthur P. Loughran, both of New York City, of counsel), for appellant-respondent.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
There was ample evidence to justify the jury in believing that, when working on defendant's ship and in the course of his employment, Thunberg slipped and fell while descending a ladder; that his fall aggravated an existing hernia, causing it to become strangulated; that this condition caused him pain and suffering and his death. There was evidence that sacks of potatoes were stored near the ladder in such a way that some of them protruded between the rings of the ladder and so as to obscure adequate vision of the rungs. There was no direct evidence that the presence of these sacks caused decedent to slip and fall, but the jury could reasonably make such an inference and could therefore reasonably find the defendant negligent. There was no such evidence of contributory negligence as to justify setting aside the verdict; that other seamen had successfully negotiated the ladder is not sufficient to compel the conclusion that there was such negligence.
The trial court did not err in permitting the amendment as to pain and suffering to conform to the proof. Evidence bearing on that subject sufficient to sustain a verdict with respect thereto was admitted under the second cause of action. It is plain that the amendment did not catch defendant unawares. We need not consider whether the trial court erred in dismissing the second cause of action, as that question is academic.
Affirmed.