BUTLER ET AL.
v.
WHITEMAN
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The dissenting justices believe the evidence is insufficient to establish the decedent was a seaman under the Jones Act at the time of the accident.
The decedent drowned near the respondent's wharf, barge, and tug. The petitioner argued the respondent's negligence in failing to provide a gangplank …
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Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed and the cause is remanded for trial.
We hold that the petitioner's evidence presented an evi-dentiary basis for jury findings as to (1) whether or not the tug G.
W. Whiteman was in navigation, Senko v. LaCrosse Dredging Corp., 352 U. S. 370, 373; Carumbo v. Cape Cod S.
S. Co., 123 F. 2d 991; (2) whether or not the petitioner’s decedent was a seaman and member of the crew of the tug within the meaning of the Jones Act, 41 Stat. 1007, 46 U.
S. C. § 688; Senko v. LaCrosse Dredging Corp., supra; Gianfala v. Texas Co., 350 U. S. 879; South Chicago Co. v. Bassett, 309 U. S. 251; Grimes v. Raymond Concrete Pile Co., 356 U. S. 252; and (3) whether or not employer negligence played a part in producing decedent’s death. Ferguson v. Moor e-McCormack Lines, 352 U. S. 521; Rogers v. Missouri Pacific R. Co., 352 U. S. 500; Schulz v. Pennsylvania R. Co., 350 U. S. 523.
For reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, Mr. Justice Frankfurter is of the view that the writ of certiorari is improvidently granted.
Mr. Justice Harlan,
whom
Mr. Justice Whittaker joins, dissenting.
I think the evidence is insufficient to raise a question for the jury as to whether petitioner’s decedent at the time of the accident was a seaman within the purview of the Jones Act.
Respondent was the owner of a wharf, barge and tug, all situated on the Mississippi River. The barge was moored to the wharf, and the tug was lashed to the barge. On October 7, 1953, the decedent met death by drowning in unclear circumstances. He was last seen alive running across the barge to the tug, and it was petitioner’s theory of the case that the decedent had fallen into the river between the barge and the tug, and that respondent was liable under the Jones Act because of his negligent failure to provide a gangplank for crossing between the two vessels.
For some months before the accident the tug had been withdrawn from navigation because it was inoperable. During the entire year of 1953 the tug had neither captain nor crew and reported no earnings; the only evidence of its movement during the year related to an occasion on which it was towed to dry dock. At the time of the accident the tug was undergoing rehabilitation preparatory to a Coast Guard inspection, presumably in anticipation of a return to service. During the period of the tug’s inactivity, the decedent was employed as a laborer doing odd jobs around respondent’s wharf, and on the morning of the accident he had been engaged in cleaning the boiler of the tug.
In my opinion it taxes imagination to the breaking point to consider this unfortunate individual to have been a seaman at the time of the accident within the meaning of the Jones Act, and I think that if a jury were so to find, its verdict would have to be set aside. Desper v. Starved Rock Ferry Co., 342 U. S. 187. Because I would affirm the judgment of the Court of Appeals on this ground, I do not reach the question whether the accident was attributable in any way to respondent’s negligence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (42 total)
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Verla Mae Gaymon v. Quinn Menhaden Fisheries OF Tex., Inc., 118 So. 2d 42 (Fla. 1st DCA 1960)…inferences can fairly be drawn. (Emphasis supplied.) “We think the evidence was sufficient to require submission of the case to the jury, and that it was error not to do so. Reversed.” In Harris v. Whiteman, 243 F. 2d 563, 564; Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754, the United States Supreme Court reversed the Circuit Court of Appeals of the 5th Circuit. The negligent act complained of was the employer’s failure to furnish a gangplank for crossing between two vessels. We quote from…1 / 2
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Brown v. Stanwick Int'l, Inc., 367 So. 2d 241 (Fla. 3d DCA 1979)…lace to place. E.g., Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955) (submersible drilling barge); Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957) (dredge); Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958) (inoperable tug lashed to barge moored to wharf); Salgado v. M. J. Rudolph Corp., supra (floating crane); Offshore Co. v. Robison, supra (mobile drilling platform); Marine Drilling Co. v. Autin, 363 F. 2d 579 (5th Cir. 1966) (s…
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Offshore Co. & The Fid. & Cas. Co. of N.Y. v. Johnie M. Robison, 266 F.2d 769 (5th Cir. 1959)…an a person injured while working at sea”. Shortly after deciding that a worker driving piles might be a seaman, the Supreme Court decided that an employee doing odd jobs around his employer’s wharf might also be a seaman. Butler v. Whiteman, 1958, 356 U.S. 271, 78 S.Ct. 734, 735, 2 L.Ed.2d 754. Butler was last seen alive running across a barge to a tug, both owned by Butler’s employer. The plaintiff’s theory of the case was that the respondent was liable under the Jones Act because of his negligent failur…1 / 2
Previewing 3 of 42 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500 (U.S. 1957)
- S. Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (U.S. 1940)
- Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521 (U.S. 1957)
- Senko v. Lacrosse Dredging Corp., 352 U.S. 370 (U.S. 1957)
- Schulz v. Pa. R.R. Co., 350 U.S. 523 (U.S. 1956)
- Grimes v. Raymond Concrete Pile Co., 356 U.S. 252 (U.S. 1958)
- Desper v. Starved Rock Ferry Co., 342 U.S. 187 (U.S. 1952)
- Holmes v. City of Atlanta, 350 U.S. 879 (U.S. 1955)
- Gianfala v. Tex. Co., 350 U.S. 879 (U.S. 1955)
- Carumbo v. Cape Cod S. S. Co., 123 F.2d 991 (1st Cir. 1941)