Ferguson v. Moore-McCormack Lines, Inc. – Oral Argument – December 10, 1956 (Part 2)

Media for Ferguson v. Moore-McCormack Lines, Inc.

Audio Transcription for Oral Argument – December 10, 1956 (Part 1) in Ferguson v. Moore-McCormack Lines, Inc.

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William A.Wilson:

— to two of the case authorities mentioned by the petitioner in support of the position expressed at page 9 of the petitioner’s brief.

I should like now to refer briefly to the third of those cases, Terminal Railway Association against Fitzjohn which petitioner cites in support of the statement that mere breach of the similar duty, again referring to the shipowner’s duty to provide safe appliances and to provide a safe place to work, satisfies the negligence requirements of the Federal Employers’ Liability Act where the injury was sustained on the property of another over which the railroad has neither knowledge nor control.

In the Fitzjohn case which was decided by the Court of Appeals for the Eighth Circuit, there was a question as to a portion of the trial judge’s charge to the jury.

The Court said, “Complaint is made concerning a statement of the trial court in its charge to the jury, that it was the duty of a railroad company to furnish its employees with a reasonably safe place in which to work.”

The Court of Appeals said that the inclusion of that sentence in the charge was not error because — and I read again from the opinion, later in the charge, when the Court came to charging the jury specifically respecting the basis of defendant’s liability, the following language was used.

It was the duty of the St. Louis Terminal Railroad Association to use reasonable care to provide a reasonably safe place for its employees to work.

The last of those four cases is Storgard against France & Canada Steamship Corporation cited by the petitioner in support of his statement that mere breach of the duty satisfies the negligence requirements of the Jones Act.

The Storgard case was decided in the Court of Appeals for the Second Circuit in 1920 and was — and referred to a judgment entered in the United States District Court for the Southern District of New York in 1918, and two years before the Jones Act was enacted.

The Storgard case referred to the entitlement of a seaman to recover damages for injuries that he allegedly sustained as a result of a defective bolt on a mast of the defendant’s vessel.

The petitioner has quoted certain language from the Storgard case at the foot of page 10 of its brief referring particularly to the doctrine of reasonable foreseeability to which I should like to come later in argument.

But at the present time, I should like to refer the Court to the full text of the sentence in which the fragment quotation at the foot of page 10 is taken.

There, the Court of Appeals said, “If the bolts was worn and defective and the shipowners knew or ought to have known the fact then they considered that the seaman would be entitled to recover damages for injuries as a result.”

The respondent submits that not one of the four cases cited under the section to which I referred the Court before the recess supports the principle proposed by the petitioner that there is, in any sense, an absolute liability cast upon a vessel owner under the provisions of the Jones Act.

Respondent submits that the principles which controlled the question of recovery or not in the Jones Act case are those general common law principles that control the question of recovery or not in any common law negligence action.

The Court of Appeals held that it was error here for the trial court to deny the respondent’s motion for a directed verdict.

In its opinion, the Court of Appeals said, “There being no proof of fault on the part of a shipowner, defendant’s motion for a directed verdict should have been granted.

The respondent submits that the record fully supports that decision of the Court of Appeals.

There was no evidence that the respondent negligently failed to provide the petitioner with this proper tools for his work.

There was no evidence that the respondent was negligent by reason of any defect of machinery.

There was no evidence that the respondent had any reason to foresee in the circumstances the possibility of any danger to the petitioner.

In the first place, there was no evidence that the respondent failed to furnish the petitioner with proper tool.

The petitioner was furnished with a mechanical ice cream scoop, a standard design that’s used commercially for serving ice cream.

There is no contention here on petitioner’s part that that scoop was in any way defective.

Harold Burton:

What would you say if the petitioner should have done when he was confronted with the situation not being able to scoop out the ice cream (Voice Overlap) —

William A.Wilson:

He should have stopped, sir, or he should have invited the attention of the superiors to the condition.

One thing we do say is that he should not have picked up the knife which he says was a razor-sharp and used it for the purpose for which he did and in a manner in which he did use it.

William J. Brennan, Jr.:

What do you mean by mechanical ice cream scoop?

What do you mean by a mechanical ice cream —

William A.Wilson:

The ice cream scoop that was used which —

William J. Brennan, Jr.:

I know what a scoop is, but that — you mean it’s driven by electricity (Voice Overlap) —

William A.Wilson:

No, sir.

It — it had a little lever that was activated by the thumb which caused a clearance device to release the ball of ice cream from the —

William J. Brennan, Jr.:

Would only operate in soft ice cream?

William A.Wilson:

It would operate, sir.

William J. Brennan, Jr.:

Would only operate in soft ice cream.

William A.Wilson:

Well, I don’t — I don’t necessarily agree.

The respondent doesn’t necessarily agree that it would operate only in soft ice cream, sir.

Perhaps it might operate more efficiently in hot ice cream so far as its releasing capabilities are concerned.

William J. Brennan, Jr.:

Perhaps it’s easy to — he couldn’t operate in the — to dip down into a block of ice cream.

William A.Wilson:

To dip down, no, sir.

To scrape, yes sir.

It has quite a sharp edge on it on a circumference — the circumference of its lip, don’t we have it?

The — so the petitioner chose to speed the process by taking this sharp knife which was kept under the nearby griddle for another purpose and to use it to loosen the ice cream.

Earl Warren:

You say to speed — as to speed they process?

William A.Wilson:

He chose to speed the process.

He chose to hurry the process and in that connection may I refer the Court to the language of the record at page 72 where there is included a passage from pretrial testimony given by the petitioner in the action.

The question now — just a couple of more questions Mr. Ferguson to get back to the accident.

When you found that this ice cream was hard, did you know that this knife to which you refer was right there nearby?

Answer: That is where they always kept it.

Question: And you just reached now and got the knife?

Answer: Because I was in a hurry, yes.

Now, this petitioner was standing in the galley of a large passenger vessel, one of the largest US flag passenger vessel.

That galley was equipped to serve 500 passengers.

That petitioner testified that there was no other instrument available to him in the galley or elsewhere on the vessel except the eighteen-inch razor sharp butcher knife that he could have used for the purpose.

He used this sharp butcher knife without a guarded blade when he could have used and said that he could have used a different type of knife with a guarded blade and now he seeks to charge this respondent with the consequences of his own negligence.

(Voice Overlap) —

Stanley Reed:

The record reference to that statement is, in the record, that you just spoke of?

William A.Wilson:

Which one is that, sir?

Stanley Reed:

In regard to being available the other knife to him — that is passed on to him?

William A.Wilson:

I don’t have it offhand, sir.

Stanley Reed:

(Voice Overlap) —

William A.Wilson:

I’ll see if I could — and he refers to — he referred to a French knife which he described as a knife with a guarded blade which he had earlier used in which he had seen used.

Earl Warren:

Which he had what?

He had used?

William A.Wilson:

Earlier used and had seen used.

I’m referring to the language at the bottom of page 60 of the record and at the top of page 61.

Earl Warren:

What — what instruments besides this — this scoop does respondent contend that they’re available for him?

William A.Wilson:

We contend generally, sir, that they were available for his use any and all instruments that would normally be expected to be found in the galley of a passenger vessel equipped to serve meals to 500 passengers.

Earl Warren:

If it was equipped right, if it was equipped properly.

William A.Wilson:

There’s no question that it was not, sir.(Voice Overlap) —

Earl Warren:

(Voice Overlap) —

William A.Wilson:

No question that it was — that it if their own — no claim on the part of the petitioner that it was not properly equipped.

Petitioner —

Earl Warren:

That this respect — doesn’t he?

He claims in this respect it was not properly equipped doesn’t he?

William A.Wilson:

With a bar tool.

Earl Warren:

I beg your pardon?

William A.Wilson:

With a bar tool, with a specific tool —

Earl Warren:

Yes.

William A.Wilson:

— that’s designed for purposes or for use in a bar room I suppose or in one of the ship’s saloon, not in the — the galley.

There’s no indication that such a tool has ever been seen in the galley on board a passenger vessel or elsewhere.

Earl Warren:

Well, what would they expect — what would they expect the man to do, that he had a rush call for 12 dishes of ice cream and he had this hard mixture and no — no tool provided, what would they expect him do?

William A.Wilson:

In the first place, that there’s no indication that it was a rush call for the ice cream but had it — as assuming it had been, the respondent would expect the man not to attempt to serve that ice cream if they could not be served in a manner that would have failed to endanger the petitioner’s health or condition.

Failing that, the respondent would expect the petitioner to consult one of his superiors with regard to that condition.

Earl Warren:

Well, on — there’s no barrier with the — would the owner be entitled to — to not provide adequate tools for — for a man to do that kind of work and put him at this peril if he tried to conform to the — to the general instructions to — to use speed and serve the — serve these people well and accommodate the waiters and so forth?

Would they expect him do that at his peril?

William A.Wilson:

No indeed, they would not, sir.

Earl Warren:

But what —

William A.Wilson:

They would not in the first place be on notice of a condition of hardness of the ice cream.

But if they were they would not expect and could not reasonably anticipate that this petitioner would choose to use and implement which prove to be dangerous in order to serve that ice cream.

William A.Wilson:

There’s no indication from the record —

Earl Warren:

What could they reasonably suppose he would use?

William A.Wilson:

What he would use, sir?

Earl Warren:

Yes.

William A.Wilson:

He could well have used the scoop that he had, failing that which — which as I say in answer to a — a previous question could well have been used in order to scrape the ice cream from the top where this ice —

Earl Warren:

I thought he testified that he couldn’t get it out with the scoop.

William A.Wilson:

He could not scoop it out, sir.

Earl Warren:

He — he couldn’t get it out because it was too hard and that — that question was presented to the jury and the jury decided with him on it apparently.

Was there — was there contrary evidence that this was adequate to that occasion?

William A.Wilson:

There’s no evidence so far as I recall from the record that the ice cream could not have been scraped with the tool that was provided.

But even so, it’s — it’s the respondent’s position on — in connection with this petition that it should not and could not reasonably have anticipated that any danger would befall this man by reason of the fact of the hardness of the ice cream which in itself is in no sense a dangerous substance.

Earl Warren:

A lot of these are on the kitchen where they’re not dangerous, normally, but it could cause a lot of injuries.

And I suppose that if a person was obligated to — to furnish proper utensils that he would have to anticipate what to me is a matter of the law that — that certain instruments should be there if — if the workman was required to do certain things.

William A.Wilson:

Assuming, if the Court please, that the respondent should have foreseen the need for a tool, it does not follow that he should have foreseen that an injury should happen to the petitioner by reason of the absence of it.

This requires the foresight upon the part of the respondent that the condition of the ice cream would have reasonably resulted in the petitioner’s use, first of the dangerous appliance not intended for its purpose and second, he uses that dangerous appliance in a dangerous manner for which it was never intended.

The bread knife that was used — the butcher knife that was used was extremely sharp.

It was designed as a cutting instrument not as a jabbing instrument.

That is precisely where this case departs from the decision of this Court in Jacob against the City of New York, where there was admittedly, a defective wrench.

Apparently, there was an end wrench which had become so worn that it would no longer take hold of a bolt or a nut or a bolt of the size for which it was designed and after having made several requests for a replacement, the plaintiff in that case was referred to the possibility that he might have a monkey wrench perfectly good.

No question about it, but he preferred to use the end wrench.

Now there was the — the production by the shipowner of a defective appliance.

There’s no such indication here.

Was there any special gadget that is made which should be out —

William A.Wilson:

A special gadget made?

Far as ice cream, yes.

Is there such a thing?

I don’t know.

William A.Wilson:

A special gadget made, I did not —

For chipping out frozen ice cream.

William A.Wilson:

There is none to the respondent’s knowledge.

William A.Wilson:

But there are several gadgets made for chipping ice —

I know about —

William A.Wilson:

— one of which —

— but I’ve never heard of one that chipped the ice cream.

William A.Wilson:

The respondent has never heard of any instrument being used on ice cream other than a standard closed-type spoon for the type of appliance with which the petitioner was furnished.

Suppose they had —

William J. Brennan, Jr.:

Whose duty was it to soften the ice cream?

Does the record show that?

William A.Wilson:

Whose — whose particular duty on board the vessel?

William J. Brennan, Jr.:

Yes.

William A.Wilson:

No, sir, it does not.

It — it — it’s silent on that question.

It was not —

(Voice Overlap) —

William A.Wilson:

— in any event the petitioner’s duty.

He was the second baker — a third baker or a second baker whose duties were centered only about the galley and the galley areas.

William J. Brennan, Jr.:

Well, it’s not his duty to see that the ice cream was up in time to be soft?

It was not, sir.

William J. Brennan, Jr.:

But the inference is clear, I gather, or at least jury of reasonable men might draw the inference that it was someone’s duty not to bring it up until it was tempered.

You offered no evidence of that kind.

William A.Wilson:

Not — not to bring it up until it was tempered.

Sir the tampering is done at the site at which the petitioner in this case was operating.

The ice cream generally was kept in a frozen state one deck below.

And then it was brought up and put into the tempering chest from which the petitioner served it.

It was with regard to the condition of that tempering chest that some testimony was offered and I would like to refer to that now if I may, that tempering chest on the galley deck.

William J. Brennan, Jr.:

What page is that?

William A.Wilson:

I have several page references, if I may, sir, there — it appears to —

Stanley Reed:

That — that is what I — I asked you, whose duty it was to — perhaps I don’t understand you.

Who — whose duty was it to see that the ice cream was in readiness to serve?

William A.Wilson:

Specifically, sir, the person whose duty that was, that member of the crew whose duty that was, is not identified in the record.

William A.Wilson:

It was some other member of the galley force apparently.

I refer now to the condition of the tempering chest itself as to which some question was raised on the record before this Court by the petitioner.

And I point out that there is no evidence whatever to indicate that the respondent was negligent by reason of any defective machinery within the contemplation of the language of the Federal Employers Liability Act.

William J. Brennan, Jr.:

Well, if the shipowner offered no testimony of any kind?

William A.Wilson:

The shipowner rested it towards the plaintiff’s case.

William J. Brennan, Jr.:

Towards the plaintiff’s case.

Well that — certainly, the jury could find, could it not, that the ice cream was hard when the petitioner made use of this knife to break it up.

William A.Wilson:

Yes, he could, sir.

William J. Brennan, Jr.:

And could not the jury also infer in the absence of any testimony at all on the part of the shipowner that in its hard condition, an inference might be drawn that someone had been negligent somehow, not this petitioner but some other employee.

William A.Wilson:

That inference could be drawn, sir.

William J. Brennan, Jr.:

Then what — what significance then is any of the evidence as to the tempering chest?

William A.Wilson:

Only to point out that although the petitioner indicates in his argument that there was a defect of machinery, the defect was of such nature that it would cause directly contrary effect to that which the petitioner suggests was the case here.

William J. Brennan, Jr.:

No, but my —

William A.Wilson:

In —

William J. Brennan, Jr.:

I — I asked you, is that — is that of any importance if reasonably, a jury might infer in the absence of any other explanation —

William A.Wilson:

I mentioned —

William J. Brennan, Jr.:

— that the mere hard condition of the ice cream indicated that someone had been negligent.

William A.Wilson:

I mention it only to dispose of the possible question that the negligence refer to defective machinery within the contemplation of the FELA.

Now, whether there was negligence at some other stage as — as to the time of bringing it up not only as apart from the question of the condition of the machinery itself which according to the petitioner’s argument which two factors would appear to counterbalance.

I don’t say —

William J. Brennan, Jr.:

Well, my question is — my question is, did the petitioner have any burden to show in what way the hard condition resulted from some particular kind of negligence.

William A.Wilson:

No, sir, he did not.

William J. Brennan, Jr.:

It was enough merely that it was hard to justify a jury to infer that there had been negligence not on his part but on the part of someone else.

William A.Wilson:

So far as the hardness of the ice cream is concerned, yes, sir.

There is in the record no evidence that the respondent had any reason to forsee the possibility of any danger to the petitioner in the circumstances.

Is there any evidence that anybody besides this petitioner knew that the ice cream was hard?

William A.Wilson:

None, whatever, sir.

There is no — the record is completely barren of any indication that the petitioner’s supervisors, superiors or anyone else on the ship had any reason to believe that the ice cream was other than in serviceable condition.

In this argument that the respondent negligently failed to furnish the petitioner with a safe place to work, the petitioner appears to take the position that the respondent should reasonably have foreseen the possibility that he would use the instrument that he did this razor sharp butcher knife, which wasn’t provided for this use and used it for a purpose for which it was not intended and in a manner for which it was not designed.

At pages 60 and 61 of the record, the petitioner admits that the use of a knife was improper.

William A.Wilson:

Reading from the bottom of page 60, question Have you ever seen a knife used to serve ice cream while employed on any other vessel, have you?

Answer: Yes.

Question: A knife similar to the one that you used on this particular occasion?

Question: What kind of a knife was it that you saw used?

Answer: French knife.

Question: What is a French knife?

A French knife has a flange at the bottom of the handle where your hand would never go down on the blade.

Question: Then would you say that the knife that you used on this particular occasion was improper?

Answer: That’s right.

What was the purpose of this knife?

They used it to cut French bread.

Question: It wasn’t put there to serve ice cream, was it?

Answer: No.

The element of foreseeability is essential to the proof of a negligence case under this.

Harold Burton:

Mr. Wilson, do you know of any other ice cream cases or cases that involved in the comparable set of circumstances with this here?

William A.Wilson:

I know of none, sir.

Harold Burton:

Are — are there any that are pending or that you know of and is — is — this the first of its kind, is it?

William A.Wilson:

This is the first case of its kind where a claimant under either the Jones Act or the FELA has claimed that there was negligence by reason of a hard ice cream after he had used a sharp knife in order to help him as he says, “Serve it”.

I assume that the importance of this case is restricted to its particular facts, the point to which I should like to come later.

This Court has recognized the necessity of this element of foreseeability on several occasions in Jamison against Encarnacion and more recently in the case of Jacob against the City of New York, both of which are cited at page 9 of the respondent’s brief.

But particularly, this Court has recognized that element of foreseeability as a necessity in the railroad cases in Brady against the Southern Railway which is cited at page 15 of the respondent’s brief.

That case involved an action that was brought in a state court in North Carolina for death of a brakeman employed on the defendant railway — by the defendant railway company.

I will omit a reading of the facts in order to shorten the time and to refer the Court to the specific language that was used by this Court in connection with its decision.

Regarding the specific question of reasonableness of anticipation, this Court said, “The Supreme Court of North Carolina was of the view that striking a derailer from the unexpected direction ‘was so unusual, so contrary to the purpose’ of the derailer that provision to guard against such a happening was beyond the requirement of due care.

With this we agree.

Bare possibility is not sufficient.

Quoting then from Milwaukee against St. Paul Railway and St. Paul Railway against Kellogg in 94 U.S., this Court said, “It is generally held, that, in order to warrant the finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”

Events too remote to require reasonable prevision need not be anticipated.

It would be unreasonable in this case the respondent submits for it to forsee —

Felix Frankfurter:

But, Mr. Wilson.

William A.Wilson:

Sir?

Felix Frankfurter:

What page is that from?

William A.Wilson:

I refer to Brady against the Southern Railway Company in 320 U.S. 476, 320 U.S. 476.

In its opinion, the Court of Appeals for the Second Circuit here had this to say, “After reciting the facts, the Court said, “No one in authority told plaintiff to use the butcher knife which was customarily used in cutting French bread.

The knife was properly in the galley and there was nothing defective about it but it was never designed for or intended to be used as a dagger or ice pick for chipping frozen ice cream.

And that it would be put to such use was not within the realm of reasonable foreseeability.

The Court of Appeals referred to one of its earlier decisions in Manhat against the United States for which there is a short discussion at page 9 of the respondent’s brief.

William J. Brennan, Jr.:

Tell me, Mr. Wilson, I gather there’s enough however in the plaintiff’s case to justify an inference or at least perhaps a difference of view among reasonable men that something would be used by an employee under the duty as this evidence indicates this petition was to serve the ice cream finding that that to be was difficult because of its hardness and finding as well as half of evidence is uncontradicted that he did that the ordinary scoop would not suffice.

So, wouldn’t a jury be justified in inferring that at least the employer had reason or should reasonably had anticipated that he’d use something.

William A.Wilson:

It’s quite possible that there is room for the inference from the record that the respondent could anticipate that the petitioner would do something.

William J. Brennan, Jr.:

Well now, that’s then to say, isn’t it that it’s sufficient that it should have realized, the employers should have realized that something be used, is not necessary for the petitioner to establish that the employer should have realized that this knife or a knife should be use.

William A.Wilson:

No, sir.

I quite agree.

William J. Brennan, Jr.:

Well then, doesn’t your argument really come down to a question whether in choosing the knife, the petitioner choose something which perhaps as a matter of contributory negligence, he should not have picked for the purpose?

William A.Wilson:

I don’t believe it does, sir, because I think we stopped short of that point.

Our position being that in order to establish a case in negligence under the Jones Act, it’s necessary that there’d be an indication of reasonable foreseeability on the part of the respondent.

William J. Brennan, Jr.:

Of something that he —

William A.Wilson:

That the — not only that but that the petitioner would use something dangerous and use it in a dangerous fashion.

In other words, this adds up to the question of the ability of the respondent to foresee a negligence on the part of the petitioner and that’s the respondent’s position on that question.

William J. Brennan, Jr.:

Well, I don’t quite understand how you can see that on these circumstances an inference that he would use something when the scoop didn’t work was something that the employer could reasonably expect that to have foreseen.

William A.Wilson:

At this —

William J. Brennan, Jr.:

It doesn’t say that when he picked the knife that the foreseeability that he would use something stopped short of that.

I don’t follow that.

William A.Wilson:

In the first place, we don’t agree that the respondent had any notice as to the condition of the commodity but assuming that we did I — I assume that Your — Your Honor’s question —

William J. Brennan, Jr.:

But how — how can you help when you say that?

You offered no proof.

The ice cream was hard and I thought you admitted earlier that from the fact that it was hard, how the jury could properly infer that the negligence —

William A.Wilson:

I believe that’s true.

William J. Brennan, Jr.:

— (Voice Overlap) — the petitioner.

William A.Wilson:

I believe that’s true, sir.

William A.Wilson:

But to do that, to — to reach the ultimate result that was reached here would require a — apparently a chain of inferences.

First, as to the negligence of someone, some agent of the shipowner with regard to the condition of the ice cream, then the inference that faced with that condition, the petitioner would not stop doing what he’s doing but take some other kind of implement in order to serve the ice cream.

Then the inference added to that, that the instrument which the petitioner did or would reasonably take would be an instrument of such character as possibly to cause him danger and finally the inference that having satisfied all these inferences, the instrument would be improperly used by the petitioner and would result in injury to him.

William J. Brennan, Jr.:

It’s that — am I correct that the employer did not ground the motion for directed verdict than any — contribute to alleged contributory negligence of the —

William A.Wilson:

If the Court please, there is here involved no question either of contributory negligence or of risk assumption.

It’s the position of the respondent here that there is no negligence on its part consequently neither of those theories or defenses as any cause for appearing in the page.

May I refer briefly to the Manhat case which Mr. Engelman referred to in his principal argument.

That was the case where the plaintiff was precipitated in the dark by the failure over the falling of one of the lashings securing a lifeboat that was hung out over the side of the respondent’s vessel.

Particularly with regard to the issue of foreseeability, the Court of Appeals for the Second Circuit in that case said, “The prospect of the falling of the lifeboat under the circumstances presented here did not possess those elements of reasonable foreseeability which would impel the conclusion that reliance upon the Rottmer-type releasing gear constituted a failure to exercise that degree of care which could be expected of a reasonable manner.

Under no theory said the Second Circuit, could a standard be considered reasonable which imposed upon the shipowner, a duty to safeguard absolutely against the possibility that the handle would be moved by one of these men.

What it all boiled down to is the difference between the exercise of reasonable care on the one hand as contrasted with the taking of every conceivable precaution or adherence to the highest standard of care on the other.

Now, possibly the exercise by the respondent here what every conceivable precaution or adherence by it to the highest standard of care may have avoided this accident but quite clearly, such conduct on the respondent’s part was not required.

The record is bare of any evidence to indicate violation by the respondent of any reasonable duty that it was imposed on it under the Jones Act to anticipate the possibility of harm to the petitioner under these circumstances.

What — this bread knife we’ve been taking about, was it one of these thin knives with a flexible blade?

William A.Wilson:

It was a — it was a knife of a thin blade, sir.

I’m not aware that the blade itself was a flexible material.

There’s is no indication of any bending of it in the record.

The French bread knives that I have seen, they’re like you almost lay them around.

They’re flexible.

William A.Wilson:

No, sir.

I don’t believe this was.

I believe that there was substantial thickness to the blade of the knife in this case.

Before closing, I should like to point out that the respondent here concedes that the simple tool doctrine has no relevance to this case.

At point 2 of its brief, the petitioner refused to argue that the Court of Appeals failed to take notice of the facts that the knife which caused the injury in this case and this ice chipper which the petitioner says should have been given to him were both simple tools.

Having negligently failed to provide the necessary simple tool the petitioner said, “The respondent should justly be charged with any harm that may flow from his conduct whether foreseeable or not.”

Harold Burton:

May I ask you, did the jury see the knife?

William A.Wilson:

No, sir, the knife was never found.

The knife was not recovered on board the vessel.

It was described and it is described in the record though I don’t have the specific page reference.

Harold Burton:

They didn’t know anymore about it than we do.

William A.Wilson:

I doubt it very much, sir.

All we know is that it was a knife of about eighteen inches in length with a handle of about four and a half inches and an unguarded blade.

I refer to the characteristic of the unguarded blade because the petitioner in his testimony to which I refer the Court contrasts this knife with a French knife which does have a guarded blade.

The petitioner argues that the simple tool doctrine has no application on the Jones Act case and with this, the respondent certainly agrees because the simple tool doctrine is concerned with the issue of liability of a master with regard to his servant in a situation where the master provides the servant with the defective appliance of such a simple character that the defect is or should be apparent to the servant and by virtue of that fact the master is exonerated from liability caused by that obvious defect because of the principle of the assumption of the risk.

Now, respondent readily agrees that that can have no place in the Jones Act case because there’s no room for assumption of the risk in the Jones Act case.

So, any reference by the petitioner here to applicability of the simple tool doctrine appears to be out of order particularly because such a doctrine was never proposed by the respondent at any point of the defense and was not referred to in any sense by the Court of Appeals.

We take it that the — the doctrine has been brought to the forefront of the argument here by the petitioner with the view to bringing this case somewhat in parallel with Jacob against the City of New York which is referred to at page 9 of the respondent’s brief.

But, of course, the facts in that case and the facts in this are substantially different.

There, a situation was presented where actually a defective appliance was provided by the master.

Here — there — the record is barren of any defective appliance whatsoever.

If all — only defect appears to be the conduct of the petitioner in doing what he did.

The respondent respectfully submits that the petitioner failed to establish on the trial a prima facie case of negligence against the respondent, had to justify denial by the trial court of the respondent’s motion for a directed verdict.

The petitioner failed to prove that there was any duty owing to him by the respondent that was not fully performed.

The Court of Appeals was correct in ruling that the respondent motion for a directed verdict should have been granted and in reversing the judgment of the District Court on that ground.

Do you think —

William A.Wilson:

It —

— it has anything to the — your opponent’s case for the circumstance that this fellow was a baker?

William A.Wilson:

In —

Serving ice cream and the bakers usually use bread knives?

William A.Wilson:

I doubt it very much.

This baker has testified that one of his principle duties was to serve ice cream.

I think it’s just a question of the allocation of jobs among the people in the bakery department on board the vessel and that question of course — that issue which Your Honor refers has never been raised.

The Court of Appeals in reversing the judgment of the District Courts has the full authority — has the full support of the case authorities that require in a Jones Act case as in every common law negligence case that sound probative evidence must be produced before a case may be submitted to the jury for their consideration.

I refer particularly to Gunning against Cooley, cited at page 14 of the respondent’s brief and the Brady against the Southern Railway Company to which I refer thereof.

Insofar as the respondent can see, this petition appears to present no question other than a revisitation by this Court of the nature and scope of the evidence produced by the petitioner on the trial.

They refused to be here and no question whose importance extends beyond the interest to the parties to this litigation before it reaches beyond these particular facts.

Although the petition speaks of a new rule of law that’s established by the Court of Appeals for the Second Circuit which is said to the contrary to the decisions of this Court and of other Courts of Appeals, a review on the record and reading of the opinion of the Court of Appeals shows that the judgment of the Court of Appeals is fully consistent with the body of case law that now serves to interpret the Jones Act.

It presents to this Court no case of first impression.

For these reasons the respondent prays that the writ of certiorari be dismissed or in any event, if the matter is to be considered on the merits of the petition that the record fully justifies affirmance of the judgment of the Court of Appeals.

George J. Engelman:

If the Court please, might I very reach the —

Earl Warren:

Yes, you may, sir.

You have some time.

George J. Engelman:

Unfortunately, my friend might have tried the case in the District Court nor argued it in the Circuit Court.

Consequently, he is not familiar with the evidence.

Now, with respect to the knife and the scoop about which the Court required, both of those articles were the ship’s property.

On the trial of the case, neither of those instruments were produced.

Now first, with respect to the knife, counsel has indicated that there was available another knife with a guard, a French knife.

The record is completely barren that there was any such knife with the guard available.

The evidence to which counsel refers is on page 60 and 61 of the record on the bottom of the page and on the top of the page.

And the witness is referring to the use of the knife on another vessel, not on this particular vessel.

Now, with respect to the scoop itself, petitioner produced the dairy expert.

He wasn’t even asked by trial counsel for the respondent whether the scoop could have scooped out or shaved out, as counsel implies, slivers of this ice cream.

So that those issues, there were no issues of that kind at all.

The case stood squarely on the fact that the scoop was an inadequate tool, completely inadequate and there was no request to charge that there was available any other knife which had a protective device which the knife which was used did not have.

Now, with respect to how this ice cream got to be hard, who was responsible for it?

It was clearly the negligence of a fellow servant.

The testimony of the plaintiff is that the third baker or one of the personnel in the steward’s department of the ship was charged with the responsibility as to the quantity of ice cream that was to be brought up, placed in this tempering chest for thawing when it was to be brought up, quantity of it.

The third baker in turn had a superior, the chef who issued orders.

So, on the evidence, as it stands, it’s clearly the case of negligence of a fellow servant.

The jury might have drawn that inference or as I said, in my main argument, the absence of proper mechanical equipment aboard ship to soften this ice cream to a point where it was properly dispensable.

And the evidence with respect to the third baker is found on page 50 of the record.

A — a question was asked as to whether this was one of the novel impression with respect to ice cream and it is.

There is a case that is not cited by either counsel in brief, in which a shipowner strangely again by the same Circuit — Second Circuit was found liable in negligence to a longshoreman, a number of them who sustained dermatitis as a result of the bad properties of threshing that oil has that propensity.

And the shipowner said, “Well, we didn’t know anything about that that these drums of threshing that oil leaked and all these longshoremen got dermatitis as a result of this commodity.

And the Second Circuit held that the shipowner was charged as a third party case, was charged with knowledge of the properties of this commodity, what they could have learned had they employed people who were skillful in the trade and could have informed them about it.

That is the only other case I know.

The citation is it’s Anderson versus Lorentzen, L-O-R-E-N-T-Z-E-N 160 F.2d 173.

With respect to the main point in the analysis of my authorities, I don’t think that I have made myself clear to my adversary.

I concede of course that no ship can be a storehouse of a vast number of tools and equipment that the duty to supply a tool can only arise out of the nature of the business and reasonable foreseeability.

Therefore, in absence of tool cases, there must always be negligence.

George J. Engelman:

Here, on the evidence I’ve described, the jury found that negligence, that failure to provide a tool.

Once we have the breach of the duty, then foreseeability is out of the picture because anything that flows from the — from breach, there is liability.