Transcript of Record — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

Supreme Court brief1959

Ask Donna

What actually matters in this document.

Text

LIBRARY *

SUPREM IE GOu RT. U. S.

‘TRANSCRIPT. OF RECORD

e °

- Supreme Court of the United States

OCTOBER TERM, 1958 ~

No. 56°

A Sg ches = :

‘UNITED NEW YORK: AND. NEW. JERSEY SANDY

HOOK PILOTS ASSOCIATION, A CORPORATION

* AND UNITED NEW YORK SANDY HOOK PILOTS

ASSOCIATION, A CORPORATION, PETITIONERS,

a oe : | a

3 we eh

ANNA “HALEC KI, ADMI FISTRATRIX AD PROSE :

QUENDUM. OK THE! ESTATE OF WAETER

JOSEPH HALECKI, ‘DECEASED, AND (ANNA

HALECK1, ADMINISTRATRIX OF THE ESTATE +

-OF WALTER JOSEPH HALECKI, DECKASED.

s :s

aot?

mst ~ ‘ 6"

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

7 FOR THE SECOND CIRCUIT , .

PETITION FOR CERTIORARI. FILED nt 28, ‘1958

( CERTIORARI GRANTED JUNE 9, 1958 _

s SUPREME C COURT: OF THE UNITED STATES |

No. 56 oe

3 UNITED NEW YORK AND NEW JERSEY SANDY

- .- HOOK PILOTS ‘ASSOCIATION, A CORPORATION |

AND UNITED NEW YORK SANDY HOOK PILOTS. .

ASSOCIATION, A CORPORATION, PETITIONERS,

. 08.

Q ‘

ANNA HALECKI, ADMINISTRATRIX AD> PROSE-

/ QUENDUM OF THE ESTATE OF WALTER

‘ JOSEPH HALECKI, DECEASED, AND ANNA

- HALECKI, ADMINISTRATRIX OF THE ESTATE °

OF WALTER JOSEPH HALECKI, DECEASED. —

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

_ FOR —— SECOND CIRCUIT

INDEX |

a ree Original Print

Proceedings in the U.S.C.A. for the Second Cireuit |

Appendix to appellants’ brief consisting of pro-”

ceedings in the U.S. sta for the Southern Dis-

triet of New York _ Sa a re me: OATS

Statement under rale 15 ib) . Sec Re 1 ;

Excerpts from transcript of ‘testimony rH CRESS! 2 Ie

| Recorp Prsss, -Printers, New York, N.. Y,, JULY 22, 1958

ii % 5 gy than SEER

; = : Origitial Print»

Appendix to a liants’ brief consisti f :

ppe ppe tig of pro. ses

eeedings in the U.S.D.C. for the Southern Dis:

" triet of New York—Coniinued

. Excerpts from transcript of testimony—

Continued

Testimony of Anna Halecki— ey sate

Donald Doidge—

Geet. ... =r —-2 a

CTOSS ~~... 10 10

Donald Christie—

BI steric 15 16

@ I htc a, . 16 17

3 Angelo Gnassi— : *

RE era oe | 16 17

Robert. P. Gaines— Res oa el

direct . pataniiawuds scents ¢ 17 18

nee 26 . 26

- Milton Helpern— aiani ¢

| ee eaccitt he

William M. Finkenaur—.

Defendants’ motions. -at close of plaint if's case bey

and action thereon... ‘i: ee.

Defendants’ motion at the close of the: evidence

and action thereon _... __- il Kea eambllicaeesin: = a 4)

-_ Defendants’ requests to charge Sesliossclb aia 43 42

«Charge of the court - biden aan 44 42

. Defendants’ requests to charge . Nacraseeeers (ie ae

Exceptions to the charge | rapa rts Oe 66 ° 62

: Verdiet. 69 64

Defendants’ motions” ‘after verdiet oa denial ;

_,_ fh RATERS SS eaepie Ab es 2 70 65

Judgment — :_ aaee wi. SSS. Bae EES PO Py a Ta @

_ Notice of appeal - shea ; a Sr

Appendix to applies’ 8 brief consist ing of proceed:

ings in the U.S.D.C. for: the Southern District

of cat ae DRS Rar eae Par dak RT 7% - @

_.” Excerpts from transcript of testimony. neces 76 7.

_ INDEX . ‘li

gag

. Original * Print

tient to eiitints brief hie of: -proceed-

* - ings in the U.S.D.C. for the Southern District —

of New York—Continued + :

Excerpts from transcript of rene

Continued

Testimony of Anna Halecki— ee Sa

direct ano | eters,

I ails stiatasis eee 69

he ts Donald Doidge— |

~. direct . iaianianes 79 70

Donald Christie— .

NCEE SATE 5 Naa ORR SS. w®.

cross _” Fara: 89 79

Donald Doidge—

(resumed ) :

direct 89. 8

SN a a 115° 103 |.

‘ recross : Renta - Sat: See:

- Angelo Gnassi—

a direct... 118 106

: “Robert P. “Gaines-— IB

‘ NE ee 108

EE sociated cee! a 3

. pedivest. ' 135 121

Deposition of James: F. Haley read by Mr. ae ak

Baker (excerpts from) 3 7 wae | oe

Colloquy eee Se | EO

Testimony of Walter Cc. Thcmapeon—

ESTEE Ra 132

- CFOws ...... MO ae

William M. Finkenaur— Pint, -

a ; SS 141

ee Milton Helpern— "te Pee |

‘cross ° cay 159 142

William M. Finkenatr—

ato ee

RE Sicacactien a SER: ee:

inten’ of motion ‘tes directed verdiet and de- , eit

nial thereof - 7 acai ' 161 144

Exhibit P-5 (abstract from) List of Repairs 1628 146 |

‘Ootnion, Hand, ee

< parsensiod opinion, ‘Lemberd, ae: saateaaadie

, Petition for hearing in bane .

Order denying petition for , rehearing -

Order denying petition for rehearing i in —

Clerk’s certificate (omitted in printing) s ake ay

Order allowing oats Se PA FSET Fe SS AIR Ed A

siinenmiteeenetiiiatentt ta Bs a2 ; : Seana ee ES (a

”

« >. e ~ .

° 9

& & : 1

- : ~ - a F ye = a

[File ‘dedorveinent omitted).

I” UNITED STATES COURT OFr APPEALS

FOR THE SECOND CIRCUIT 3

« Case +e: Tce pet

Anwa ‘Hauecxi, fe oe eee of the ~

Estate of Walter Joseph Halecki, deceased, and ANNa

Haecx1, Administratrix of the Estate of Walter Joseph’

Halecki, deceased, Plaintiff-A ppellee,

Vv.

Unrrep New York anp New Jersgy Sanpy Hook Ports

‘Association, a corporation and. Unirep Nsw York

~ Sanpy Hoox Priors ASSOCIATION, a corporation, Defen-

eee

"Appendix to Appellants’ Brief—Filed August 29, 1957

[fol. 1} —_ ‘StaTemeyt Unper Ru 15(b)

This eto was commenced by the service of a summons .

and complaint filed August 21, 1953-(Record 529-537). ;

On September 17, 1953, an: amended summons and sot:

plaint was served and fited (Reeord 540-548).\.

Thereafter on. December 1, 1953, an answer \was served

Lag by - defendants-appellants (Record 551-555).

was\ held hefore Hon. Edward Weinfeld, District

ayes a\jury, in the United States District Court for

; ~ outherti District of New York, on December 28, 1 if:

- January 2, 3, 4, 1957. Verdict was returned by the ju

_ for th plaintiff-appellee and against the defendants- -ap- \

' pellants, in the sum of for pecuniary loss to the ne

> widow ahd dependent children, and in the amount of $2,500

for constiqus pain and suffering to the decedent, in the x

total amount of $65,000 (Record 1-528), / eee

At’the conclusion of the plaintiff’s case, the defendants.

moved for dismissal of the. action (Record: 334), arid for

“a directed verdict (Record 335). Thereafter, at the con-

‘clusion of the defendagts’ case the dubvadeaiie. Ne

their motion for a directed verdict (Record 425). These

‘motions were denied by the Court. After verdict, the de-

fendants moved to set aside the verdict and further moved -

for -judgment notwithstanding the verdict and in the al-

______- ternative a motion for a new trial.. These motions were .

denied by the Court (Record 528)! . ;

Notice of Appeal from the order denying the defendants’

motion for a new trial; from the ordef denying defendants’

motion for judgment - ‘notwithstanding | the verdict; and

from the verdict of tle jury and the final judgment entered

_ thereon was served and filed on January 29, 1957. :

i i

; Ty. Unrrep Seicus District Court FoR THE

‘SoutHern District or New York

Excenprs From TRANSCRIPT OF ‘TESTIMONY

ANNA ei the plaintiff, being first daly sworn, ‘tosti-

fied as follows: a : i

. . .

6 - Gs *. \e Se @° nr

Cross examination.

3! By Mr. eheaek:

e" ° . * Ba. eee fe *

.Q: Mrs. Halecki, at the present time you have an action _

pending in.New Jersey? =

Mr. Baker: Just a moment. ‘I object’ to. that. I think

. that should be subject to the Court's = before the

question is: put.

The Court: Let me: ste the papers that you refer to:

2 For the time being I am going to sustain the objection.

This may be independent. grounds of. liability.

Mr. Mahgney: ieaptian:

< * * . + ; we -

. 3 , * 7

~ Dowap Dean called: as a witness on behalf \of ‘the

plaintiff, being: duly sworn, testified as. follows: gst oe

Direet €xamination.

By Mr. Baker:

.Q. Mr. Doidge, what is your cies ceengition! ae 7

- A. Electrician. a : .

- Q. How long have: you been an electrician! a

A, About 30 years.

Q. In September’ of 1951 by whom were. you employed?

as: By the K & S Electric Company. - es

Q. Who is the boss of that company ? Y, eae

A. Mr, George Kuntz. . “er as

Q. Now, what was. your job with them -at that time?

What position’ did you hold? |. Bee \.

A. . was the shop foreman. . ae “4 \

- bd s ° es 2 ‘s . * ° 7

[fol. 3}. -Q How long had you been working with \ Walt

A. I think it. was around six years. ee wee

* : + <8, ee a, »

- Q. Now, with ales to - work on this vessel, was \¢ e

it the New Jersey, the name of the vessel ? |

A. That is right, ere . |:

Q. Where was that vessel docked’

A: Im Rodermond Shipyards, foot ber Henderson Street, e|

pasa 3 Oty. | ‘ !

a %@ . 7 a *

| Q, Did you know at that time | that the carbon tetra-

chloride was dangerous? :

A. Yes, sir. , y Sg

Q. And you. had known it ‘tee some time batcie, that ie ee ay

date? : . i

A. That is ridht.

_ -Q. Did you discuss the danger of the use of this darben

tetrachloride with the chief engineer at that time? :

_A. I, don’t think so.. We: just take’ those pam for

granted. “We knew what it: bus all om. a

. s ‘\

Q. What ‘prepststions did ‘you maker Will you tell us_ 7

that? ; Mies Ft Heinys

weeeee © Well, on the e Priday eiteniena 1 neuen extra air

“hoses aboard. and also brought an. exhaust ener from the

storeroom. — 2

Q: Now, these air hoses, whose equipment 1 was ‘tat?

A. They belong to Rodermond Industries.

> | Q. And the blowert - -

-'. . A. That was also Rodermond Industries.

Q. With reference to the air hoses, will you tell us what

they were for? Will you describe that to this Court and

jury.

A. Well, the-air hoses were approximately 50 foot in

length and they were attached to the pipeline along the

_ -doek and brought down into the engine ‘room.

-. ~Q. And what were those air hoses used for?. Will you

. * tell us. ;

A. Well, we used it to attach to the spray. gun for the |

carbon tetrachloride, and the other one we used as an ex-

haust underneath the. generator, just:turn it on to blow the -

~{fol. 4] fumes of carbon, tetrachloride’ away from ‘the gen-.

erator as you were spraying. .

.Q. So that there were two air hoses? Oue was. iused and

- ‘applied so that You could spray the carbon tetrachloride?

: A. That is rifht. |. if

Q. And the other air hose’ you used to blow air in the

face of this man? 3

A. Away from his face.

oe You ‘were telling us about the two air hoses which

you brought for the vessel and the uses which were made

_ of these air hoses. What else did you’ bring aboard. the

vessel on the preceding day, namely, a Friday, before”

September 29, 1951?

A. Besides the air, hoses I took . a high compression

blower" 6 r on board.

‘ Q. And this blower, I understand, was a blower. which

belonged to Rodermond ee

A. That’s right. 7 :

Q. And you brought it aboakd the vessel that preceding

Friday? seas

A Yes, sir. eae eons

Me . *

me « & ‘ . . e P e @

a MOP Eye A]

’

a Che ae

; =:

Q. T what you did, just, how you placed it in post-

~ tion and wKere.

A. When you go down to ‘the ’ engine room,°there is a.

. side door on the deck side and then there is a catwalk around

the top of the engine room, with a ladder going down into.

the lower engine room. The blower was placed on the

corner of the ladder, blowing so ‘that it would blow out |

of the open doorway. One end .was struck down into ~

the engine room and the other one facing up, to blow out

towards the top of the doorway.

Q. Did this blower blow air in or exhaust air out?

‘A. It blows both ways but we had it on the exhaust :

position. -

Q. Taking it out? . \

A Taking foul air out. be

2s . aE * * +2 * *

Q: ‘Could you give us ‘the dimensions « that engine

room? — '

A. I never maaweniil it but [ would say. suorenitieediuky

Ta 5] 40 feet by 30 feet, maybe—40 feet long, fore and -

aft, 30 feet wide, approximately, oe “feat

Q. And how high would you say that engine room was

-frém floor to ceiling? ‘

Q. Well, that engine room that is involved here.

A Ye.

Q. From the-floor to the. ceiling, how high is itt. eet,

A. I would say approximately 18 feet. : ae

* .) ce a ee: .

Q. What other things can you tell us with reference to

that room, wtih (sic) réference to its ventilation—say the’

. doors? Were there doors: to the room?

A. Well, there were as I said before. ‘There was one’

blower that’ I_placed alongside of the door. going into the

open deck, on the port side, and then there was another door

that went up ‘into ‘the galley and ‘then out onto the open

deck from there.

Q. So it had two doors, this pcrticndan’ one?

A. Yes, but’ oné was. a little bit of a re alley, the gpe

A. From the lowezengine salina . ae * ay

~S 6

going through the ws siley and out. then; out to the open deck

again.

, Was that ‘oe closed?

. No, both kept: open. 3

Both kept open. .

Yes, sir.

How large were these doors, could you tell us?

A regular door. I would say about 3 foot.

. Three foot what?" Widet ieee : me

Yes. aie ta .

-Q: And how tall?

prays: A. Oh, about seven: foot.

mac t

‘se: e pokey 6 + : @ -<« e Red

pepereroped

Q. Now, preparatory to doing the work that you are -

required ‘to do, that you méntioned was on a Saturday

morning, September 29; 1951, was it necessary for you to

purchase any. ‘materials or anything ?

' A. Yes, we had to gét the carbon tetrachloride. . |

Q. Why: did you purchase the carbon -tetrachloride?.”

A. For use on the ship. .

. Q. And:why did you select carbon tetrachloride? .

A. Because the specifications called for it.

{fol.6] Q. How much of it did you purchaset

A. I got ten gallons of it. - |

Q. Can you tell us why you selected ten gallons?

_ A. Well, we just figured that it would take five —

. per generator to do a thorough job. : Aes

. Q. And you took ten. gallons? =

A. Yes, sir..

Q. When did you bring that aboard the ay ey

A. I think I bought (sic) it aboard Saturday morning. rs

I brouglit it on a truck with me.

Q. Was this purchased by you on behalf of K. & S.

Electrical Company, your employer?

.A. That is. right. ; e

. Q. You brought it aboard the vessel, you 1 think, the

- following morning?

A. Saturday morning, yes, sir. -

Q. How much of that was used during the day! ices

A. I think it was around eight gallons. Epa

o -

. & ‘se G = F * o « @ : _ *

r y

-Q. What did i do. that morning? The. first thing you

did.

‘ A. I went to. see, checked: to see it the air compressor

had been turned on, and Walter in the meantime attached .

the hosés to. the pipe along the street and put the end of

a down in the engine room | where it was going to be used.

* eo a e oo ee e e

Q. Where did: thel particular Juice come from. for the .

Ex connection of these air loses? _

eA. Well, that came from the standpipe along the street. ee:

‘There was an airpipe. running the street.

_ Q. From the dock?

A. Yes.

Q. Who turned that. on, if you ‘know?

A. We had made arrangements with eh ieee for the? —

_ engineer to start the compressors up:on Saturday morning.

i. What engineer was that? Rodermond’s engineer?

‘A. Rodermond’s engineer, yes.

Q. That is with reference to air: hoses. Now, what else.

was dorie? What was the next thing done?

{fol. 7] A. We got all ventilators going that we had placed

_aboard, that is, the: blower.

Q: When you:say all the ventilators, be ‘specific. What - 7

_ do: you mean?

- A.’ First of all, I had to start the shore. generators,

. The Court: The what?

J The Witnéss: The shoré generators:

The Court: What was the function ot the shore genera-

tors?

. The Witness: Well, the shies generators were dead.

_ Therefore, to have power and light on board we. have a

generator on shore with cablés running to the main board.

of the ship and attached there so that we can throw any

switch and operate any part of the _* while it is in the.

process of repair.

Q. Now, this ‘ship’ s generator which you. say was dead, ~

that was dead on this particular. ww is that right? 7

A. No, sir. .

Q. It was dead before that?

“A. The generators were not running white: it is in *re-

pairs. .

pie

Ba eiey: ae

.Q. Was it dead, this generator, during the entire time

that the vessel was there from that Monday morning on?

A. That is correct.” . ~ ee eae

* Q. So you got your: power then from shore? ~

' A. That is right. ~~. give

Q. Then you turned on this power or. the power was

turned on, as you described it? TeH ts what it did. |

A: Well, it energizes the main switchboard on the boat,

and that, in turn, we throw the switch. and start the blower

motors for the ship’s ventilators. orig ase :

Q. So it starts the ship’s blowers, the ship’s own ventilat-

- jng system that morning?. yes ;

A. Yes, ee ee Ags:

: \ Q.. What time did that start? Siar ale

A: 8:30. ay ate

- Q. Did the ship’s generators which you started, did they

(fol. 8} keep going during the entire time that you did this ‘/

work that day?" | : Men he = setae:

A. You mean ‘the ship’s blower

“The. Court: He said the ship’s generators would not '

operate. . Bet Sere pile bur :

—, ..Q. T mean the ship’s ventilating system.

"A. Yes. ae” ie Jha ball anes 5

Q. That kept going during the entire day during the [|

time you did this work? 7 <a E

er? et ed bis " :

The Court; Does that take care of both intake and ex-

haust? gate : |

'.° "The Witness: Yes, : ihe een es 4

~ Q.-fhese blowers that you had, that is part of the ship’s |

blowers, was that all blowing air in? :

_ A. I think so, sir. ; TEES, Hage :

Q. But the portable, the one you placed -in there, you | [

described, and brought up to ‘shore, that was the exhaust

“that took-the fumes out? ~~ oe ae : A

Ms Tome ie right |

Q. The blower which you installed, was that kept, go:

‘ing all the time from the time you started doing your work

until the time you finished your work? - \ - ae

9 .

ee : is

_Q. Was there anything else with reference to the ven-

tilation that you kept going during that entire-time? =

A. Well, the extra air hose.that-f had was tied down to - —

the base of the generatof and turned on, not full, of course,

but partly turned on allowing air to come out that way to

circulate, and then, of course, we had the oscillating fan —

which was atso going. oy ee

Q. And they all kept going during the entire time you

‘did your work? ete \. MGs .

A. Yes, sir. Adi

Q. Did you bring anything else on the vessel for the”

work to be done that,day for the cleaning of the generators

with the carbon tetrachloride? :

‘A. Y&, I brought three gas masks down. there on Satur-

day morning. 3 =e : :

-* O: te Se ery «

‘{fol.9] Q. And they. belong to your own firm!

A. K & S Electric; yes. ep Jap abw ies

Q. And you brought that aboard the vessel that Satur-

day morning? : eae Res | :

. A. Yes, sir. : oe

Q. Did each of you use a gas mask?

A. Yes, sir. . }

- ’ . * aeeten _ @

- Q. And who 4vas on the vessel other than you and Mr.

Halecki, that Saturday morning?

A. There’ was only a watchman.

Q. A watehman for the vessel

A. That’s right.

Q. Will. you tell us the procedure’ that you pursued

when you started this spraying? How did you dg that? -

} A. Well, we have the air and everything on. The spray

gun is attached to one of the air hoses. ‘The spray gun

‘itself has a’saxtion hose that went down into the can of

carbon tetrachloride, forming a suction and spraying into

the generator coils and the armature. —- \

* ‘i, ¢ * * Sem * Celie ned weak

f ys.

tie ¥ pave

\ Bae ' ( -

z A

SAO ue oe . a

Q. Tell us just what went.on there? Stra:

A. Well, ‘the hoge from the spray gun goes right into §

the can and skunior you move, there was only about

three foot of hosé on it,:and whenever you moved you had

_to. move the can with it. So.we started spraying, as |

eens said, about nine _o’clock, maybe, and we sprayed for about §

maybe ten, fifteen minutes and then we would go up op.

ah or maybe up in thie messroom. = alae

~Q. During t e period of time that he was doing the

spraying, durigg-that day, did he wear a gas mask?

A. Oh, yes.

-Q. He wore it at all times?

A. Yes. he tee reg

"eae _@ .- Sprayer tes °

Q. When he left the vessel—I am talking about Mr. |

. Halecki—did he’ say anything to you with reference to any- -

[fol/10] thing concerning his condition at that time?

A. The only thing, when-I was leaving him, we were |

up on the street, and the.only thing he said to me was

that he had a peculiar taste in his mouth, but that is the

- only thing that was said. = er om

. : 6 e _* 6 -\e ‘ o

\Cross examination. ate Ne ‘a ;

ie Ses ‘ } ee

-By Mr. Mahoney: (aati

a” Se x * : * . . eas SR

_Q. You have identified for Mr. Baker certain. documents

that«were described as repair lists and things of that na,

. ture. Were they given to you-by Rodermond employees,

Mr. Doidge? — i. 5a 3 ary sie

A. As I said before, I am not sure. They could have

been or it could have been handed to me by my boss.

_ Q. At any rate, they were not given: to you by any

Pilots Association’s members. —

- A. Oh, no,- no. : a ¢

Q. ‘Do you know who recommended those specifications?

A. Rodermond Industries prepares them. i:

* Q. Your orders for coming aboard the Pilot beat to do

saa

this particular work from Mr. Kuntz, your own employer,

isn’t that right?

A. That is correct.

Q. You were not given any particular orders as to the

time when the work was to be done, were yout

A. No, sir.

Q. I believe you told me at one ‘time that the time

schedule was up to yourself, isn’t that. right?

A. @hat is correct.

’ . ae Oe * ° . J e.

—Q Before you worked on the Pilot boat in New Jersey,

I believe you testified that you had used the same sub-

stance many times before, is that right?

A. Oh, yes. , > jee

? a |

' * “e O55, * * * . & <

° s

Q. I believe you have stated before today that using ;

carbon tetrachloride. to clean generators was the customary £

method before September of 19511

A. Yes.

[fol.11] Q. And.was a method with which you were com.

pletely familiar, is that right?

A. Oh, yes. Se .

Q: You had ‘done this job in connection with or in the

company of Mr. Halecki before this occasion? | |

A. That is true.

Q. And as far as you know; he was: fusailiar with that

substance too, isn’t that —

_ A. Yes. ;

' Q. And I believe that on some occasions, at least, you

had used carbon » that on pen even: ‘when it was not so

specified, is that true?

A. That is. possible.

right?

A. Yes. ; aie eee a

Q. And not all of | ‘your work is done on ships, is that -

true? | | , |

A. That is. true. ; :

Q. ‘And I suppose ‘you have cleaned generators and fac-

tories and. buildings #nd other places on shore as well as

Q: You are an electrician by ‘rail, Mr. Doidge, is. that |

_ on ships? And have you ever used carbon tetrachloride

in places like that?» , .

| A. Yes.

-Q. You yourself were in charge of this work, is that

correct, Mr. Doidge? :

_ A. That’s correct. ,

Q. And on a prior day, a F riday, whhin you 5 ecbuaitty did

the: job, this equipment was assembled by you and the

decedent, is- that. right? |

* la me, oh

-Q. And it was under your, direction, is that right? ;

A. Yes.

Q. And I think you told us you took air ‘hoses aboard -

the ship. Will you tell us once again who owned the air.

hoses? ~

_A. The air hoses ieeeid to Rodernaond Industries.

' * Q. And you took blowers and omemetied them'in cert&in—

places in the engine room? , 3

.' A. We took one blower aboard.

i Q. And that belonged to whom?

A. Rodermond Industries.

_ Q. And you assembled that yourself ?

A.: We just had to tié-it- and plug it in.

- [fol. 12] Q. Did Mr.‘Halecki assist you in doing this. work?

A. He did.

e .- s . + AN a 7 A a ta

Q. As far as you know, these air wee were not defee-

tive in any way?

A. Oh, no,

-Q. There was no substarice that leaked out: of them ap)

‘

anything like that? ©

A. No. |

Q. Where did the power come. from. that operated

equipment? . - ‘

A. The power came from the shore alanis “f

Q. And the pilot boat New Jersey was a dead ship; is

that right? 3

. You ‘might say varity heniinee the power from the

gel erator ashore was s attached to the sate 8 switchboard. '

: 13

Q. At any rate there was no power originating from the

ship itself? ‘

A. No, no.

Q. And that had been the case all: week, I think you told :

us.

A. That’s right.

_ Q. The generator that did ecteally power | this —

. ment was on the shore; is s that right?

A. Yes.

-Q. And who owned that, please? /

A. Rodermond Industries. a

. ae

: ae 8 . Re ake i. *.

Q. Had it been operating all right?

A. Oh, yes.

-\ Q, And I think you yourself started, ‘is s that correct?

A Yes...

_ Q. And’ it was operating all’ right then?

A. sid > right. ;

Q. This same generator was used to give power to the

vessel’s own —_—e is. that correct? haere

A. Yes. / . ;

Q. And by that term. “vessel’ $ own maa do you

understand that we are referring to the a i aaa that

was part of the ship itself?

_ A. Yes.

“w@. As pebpng cemieel from <ee you ina brought

aboard. .- .

- Av That’s right.

Q. And as long as you worked on the ale that ventilat.

; > ing ‘equipment was operating | properly, eae 2 it not?

A. Yes, sir. ;

[ fol. 13} Q. Now there is no doubt in your rind that all

during. the ti ae of the work, the blowers were blowing air

properly. andthe entire apparatus was CpeteTeny, properly,

is that correct?’ «+ «

A. That’s right.

. « ° ° . i % .

Q. And when you started to work that morning were you -

satisfied in your own opinion that this was adequate ven-

tilation for the men to work with carbon tetrachloride?

* [fol714} about?

a —

| A. Well, sir, I am not an engineer but I was satisfied it

as sufficient, St. Nay oe ST AS

Q. You were satisfied it was sufficient?

‘A. That’s right.” ~~

1st a * pater iase’ eee”

Q. I think you told us that there are ducts leading from 7

the engine room to the open air above?

' A. On the ship’s ventilating system?

Q Yes. Beat ee

A. That’s right. . ee 7

_Q. And these were blowers? E ae

A. Yes, powered by each one.

Q. And they operated by an efectric motor?

A. Yes: 3 fe oie

Q. Do you know the horsepower in these electric blowers t

A. Not now I don’t.

* Q. Did you take notice of it at that time as an electrician?

A. Yes. 3

_ Q, Was it your opinion at that time that this motor was

adequate for this purpose?

A. As fay as I could see, yes.

"~~ Q. Did you have occasion, when you were in the engine

me ee under these ducts and feel the air comé.in?

A. You could feel it all over,

Q. There was no.question in your mind that there was .

A. That was blowing in, right. sh hs

‘@.- e * * fee . .

- -Q: This carbon tetrachloride is a solvent, ‘isn’t it, to

fresh air coming in through these ducts, is that’ right?

‘ dissolve grease? ~— > Sp

ih Te |

Q. Can you:tell us just briefly how a man using it oper-

ates? It is sprayed on. by this air gun that you told us’.

ee Pig BAR

A. No, it is something like a paint spray gun.

Q. And it forces the substance onto the metal surface

_~ of the generator, is ‘that correct ?.

.-» A. Well, into the coils.

-Q. And what happens? ssi

A. The coils’ on the armature..,

a«

—_—- -—

_ Q: And what sae then? —. 2 ta We

A. Well, it just penetrates in there and washes the

" grease and foreign particles out of there. waet ce

+ Ree es . & * ae

Q. There wasn’t anybody else inspecting your work on *

the day i in question, was there?

A. No, sir.

Q. This watchman you told us about—he had nothing to

do with the Work, did he? 4 is

A. No, sir.. - 3 @ soa

. Q. And nobody commented’ with the Pilots ‘Aasociatii

‘ and by that I mean the chief engineer or anybotly el 1

“they didn’t direct you as té how-you assemble these vari-

ous pieces of CeYENEN, did they? :

A. No.

Q. That was, ‘all- “up to yourself is that right e -

A. That’s right. -

Q. "And as far as you know, you. assembled it all prop-

erly? ‘pe ah

A. That’s right. ~ : | ie:

Q. And as far as’you know, you assembled it properly.

Were any complaints made to you by the decedent during -

the day about the way this equipment was operated? /

A. Not during the day, no:

_ Q. Did he ever make any complaints about how the

~ things were,set up or. — they opreeien"

A. Oh, no, no. > : :

+. . r ¢ be 3 . € *

Q And I think you told us that t Sawada eg was equipped

by yourself to suck air ont, to exhaust the air; is that the

idea? a 8

3 That’s right. : Nt |

= Was that working all | right? .

. A. Oh, yes. |

Q. Do you feel the power taking. the air ont

LF bee’ de.

Q. In addition to these doors that you neitioned. ‘wasn’t

[fol. 154 it a fact that there were skylights or ventilators

overhead that led nen out to the. open air? — :

A. -Yes. : x

: . Serre | \ cei ye Nsom eS =

ou ; Ae Oe re, cog ee A th es

amine... Le eee aa

\Q And were they open daring ¢ the day?

yA. Yes, they were open about six inches to a foot.

Ne , e |" a _ © > . 7

Q.. af ust one more question, Mr. Doidge. Is it your opinion ;

that the ventilation on the boat was adequate on the: ment

you worked there? | “

A. As far as I am js, it was, at that time, any- .

‘way. |

et + e : le * fe af a5 .

DoyaLp Curistr, called as’ a witness on behalf’ of the

- plaintiff, being sworn, testified follows:- ,

Direet exa uination.

oi | c

Q. Mr. C Pintle, what is your position? : | K ae

A. Personnel manager. X

Q. And that is with what company t oe Moise

A dermond Industries. se

ie, St ee ‘@e.. * ® - © : * NS

ee: Q. With reference to any of this work that is listed. in

these last. two exhibits—was any of it subcontracted out

by. the meenayne Industries to another company,.if you

‘know? 5 |

‘A. I'believe so, ew

+ Qu Was the electrical work subcontracted out, as far as

you ‘know?

_ A. Yes. We don’t hove any electrical workers. .__,

- Q. You don’t have electrical workers. So that you sub.

contracted it? :

A. Yes.

Q. And to what company did you subcontract it? Can

you find that eut from your records!

_ (Witness examines)

A..K & S Electrical Company. fas.

Q. Do yokonw (sic) if you oe a _ contract with

(fol. 16} thee K &S i

' A. That I don’t know.

4 Mr. Baker: ‘That’s: all. Ae

fe eps —

\ .Q..Dr. Gnassi, what are’ you" connected with at

Cross examipation.- = = \\' {\ \° |

By Mr. Mahoney: ) \ j ; \ \ | ¢

aes Mr. = were you emp yed by Rodermond i in

a |

Q. Do you have any direct knowledge of this transaction

with the Pilots paneetiont

A. None at all. . %

Q. No knowledge of your ow n, is that right ;

~A. No. :

“Q. Thes¢ various exhibits which you have identified were

by Rodermond, were they not? \

pies | have, yes. \

\ bad s bl Lae \ oe . \ Y

AnoeLo G}assi, called as a withess on behalf of plaintift \"

being first duly sworn testified a Sey PAL iy |

| Direct xamination.

. By Mr. Baker:

? *

Pears time?

\ A. Jersey City Medical Center.

. what is your position with the Jersey, City Medi

\Center?

A. Chief pathologist. Piet S

* . \ =e Z9: sg We. > . /- :

Q. Doctor, looking. at these hospital” ean» whi¢h are

now offered in evidence as Exhibit 16, would-you first read

to this jury the history that appears upon sen

First, what is -the date of/ his — accordityz to the.”

6 records? * oo

A. 10/2/51.

'Q/ What is the history as shown on. the admission sheet:-

-Doetor? /

A. “Chief complaints: V, (caniting three uve Pafient.

was ow ing generator with a tetrachloride on Satur-

es | Sereren _ _ aaa ae ee ee gn ET

| . . — NB OSS.

Shes

2 day, three days” hha there is an abbreviation “PTA”

and I don’t know the significance of it. |

[fol. 17]. “Felt. nauseous that night.. On the next day

— had onset of vomiting which still persists. Patient

ot hold anything on his stornach and has a loss of ap-

petite. Patient. had headache for two and a half to three

days. No dizziness, Patient has been having diarrhea |

since. three days ago; average bowel movements, every

half hour, loose, watery; no. bleed, no abdominal pain;

cough since onset of vomiting, non-productive, irritated

all-over from violent vomiting; oliguria,” Which means

_ suppression of urine, “one day. Patient‘has been pee |

one-half pint of whiskey a day for five mentee. Pa

That’s the history. |. ‘i

- Rosert P. Gaines, called as a witness on behalf of the

: plaintiff, being duly een, testified as follows:

Direct. examination.

By Mr. Baker: :

_Q. Where is your office located? CR eae ma ae

A: In the City of Bayonne. eee ore,

_ Q. 1 called you . Dr. Gaines. Am I wreigt Is it Mr:

_ Gaines}.

A. Well, we have. a PHD in chemistry. The title really 7

does not carry much-weight.

-@. Would you tell. us a little more about’ that. What

do you mean by 50 to 100 parts per million How is to

figured, doctor?:

A. It is very simple. One milligram per liter,. or it

would be one. per million. In other words, your million

is your volume, an@ of that, one part, grains per gallon

‘would be almost ‘approxynately the same. That is, one

part per gallon would be analogous to one part per-million.

So work was started in that field, and it was found that

in order to dilute a volume down to a safe concentration

of, we will say, 100 parts per million, they took one.pound

pf carbon tetrachloride’ and they found * in order to re- }

G..

‘\

athe

duce the content of/the room with the ‘one e pound of carbon

[fol. 18] tetrachloride in it down to 100 parts per million,

‘ they had to add 225,000 cubic feet per minute in order to

_get that solution down to the safe limit. That was too

_ extensive an a so they worked on ventilation, and

- then it was found} that the most efficient. means to remove

850 cubie feet per minute, so today ventilatign of a room

where carbon. te rachloride vapors are, coer

in industry can

merely by ventilation, and it should be added; in fairness

to all, that the ventilation should be and must ‘be from the

bottom, that is, from the floor level, because the vapors ee

very heavy and {lo > concentrate there.

~Q. Now, Doctor, with, reference to the use of, . say, 8

gallons of carbon tetrachloride, and its use by a man in °

extensively:

made very safe without much trouble

the spraying, of carbon tetrachloride in an = réom

for a period of from-about 9 o’clock .in the morning“antil

about 3 or 3:30 in the afternoon, a period of anywhere : oa gs

from 5 to 6 hours, could you calculate for-us the approxi-

-maté concentration of carbon tetrachloride ? 3

The Court: Wouldn’t you want, to given. the size of.’

the area in which he: worked? Don’t you need that?— ie

Q. 4 will: ask you that, yes. Now, the size of ‘the area

was an engine. room which was 40 feet long, 30 feet wide, .

the approximate aréa, and it was 18 feet high. a

Now, the area contained.a number of engines siniiiar to

those shown in the photographs which are marked in evi- |

dence, which‘I will show to you.

I show you Exhibit 5, Exhibit’9, Exhibit 10, spatiale 11,

Exhibit 12, Exhibit 13 and Exhibit 14.

. Now, on ‘those photographs the letter D means the duets,

and the letter O: means the openings. =

[fol.19} The openings were all in the ventilation system"

of the vessel in the ceiling throughout the various parts"

of the ceiling, and the ventilation was in the bringing in*

of the air into the :particular room.

In addition, photograph B. shows the openings outside*

of the ducts, the transom openings. In addition, the man

was working: in. a room under the following additional

onedisicin’ There vas a y blower which was attached and

brought into the room to exhaust the air from the room at.

a distance of about seven or ‘eiglit feet above the engine

-. floor.

There was sles a fan to iow some of the fumes away:

from his face, which was going. There were also two. doors.

~ I think they show in some of those photographs, and they

‘were elevated above the’ floor, I ‘think a distance ,of six or

seven feet, and he also wore a gas mask of the Army

surplus cannister type. During the course of the work he

wore that type of gas mask. And, in the cleaning of gen-

- erators there were two.air hoses one ‘of which was used

to spray the carbon tetrachloride and the other air hose

was used to blow the fumes from the vicinity of his face.

_ He used, during the course of that day, about 8 gallons,

originally brought on-10 gallons in two 5-gallon cans. They,

coused up 8 gallons. The 5-gallon can was kept on the floor

‘of the engine room, andthe air hosés were in that can and

-. going to. the spray.

They worked in the foJlowing manner: \he would spray

for about 15 minutes and then stop. the sprayi ing and go

off on the engine deck of elsewhere. He was away from

the spraying work for about 15 minutes.

Taking all those facts into consideration, Doctor, ‘could

you calculate or reasonably estimate the concentration of

carbon tetrachloride that was present _—_ such: circum-

stances?

' Now, if you need time, Doctor, I think we are. dose to

‘the noon hour and——_

A. Rather than needing time,. Mr. Attorney; I would

[fol. 20] much rather be elucidated on a few phases here.

“Q. All right.; . ~~

'. A. In the first place, the volume which ‘you have: ‘given

me; 40 by 30 by 18—is that exclusive of the’space occupied

‘by these numerous ducts and staircases, and motors, and

-so forth, or does that include the displaced air?

Q. No. That is the entire area. .

A. That is the area. Therefore, considerable ait will os

displaced within the area which you had given us the dimen-

sions of by the orelpeant: ,

Q. That’ 8 right. -

eee SS

<_ Well, s sir, I am not comune with this ship.

know a thing about it. ‘Therefore I would like to be

‘as to whether it is 50 per cent. displacement of the shi

or what. I mean, that is a factor to be- considered.

Q. Well, would the photographs showing the amount of

engines, and so forth, indicate approximately — ;

A. Sir, I cannot, under ‘oath, give a precise figure unless

‘we agreé somewhere. that there is a certain amount of air

- displaced by this machinery. If I judge about 50 per cent,

‘don’t know whether that is fact or just. an estimate, but

[ hope that the Court and jury bear with me because what

I am trying to do is, if the dimensions of this room are

so much, it has a’ certain volume, but if we are going to

stack extensive bulky furniture in here, we are going to

4 lot of air. I think that is an important factor.

» M er: Could we have a recess a this time, your

Honor, so that I can—— Vea

The ‘Court : I will give you the ined recess, but you

‘don’t have any information: in this record so ‘far on that.

You cannot supply that information > ‘to-him at the lunch *

hour because it is not in the record. ;

[fol.21] Mr. Baker: No, we haven’t got that information,

your Honor; I agree. ° 4

_ The Court: ‘You caii give hin no information during the

lunch hour on that subject.

Mr. Baker: I can’t give it to-him because I haven't ‘got

“such information, your Honor.

The Court: Well, it is.a few minutes to one anyway,

so we will.take our lunch“hour recess and*resume at 2:15.

( Recess: to 2:15 p.m.)

, Ld

a |

- “question.

AFTERNOON Szssion

. 9 o

; Roperr P. Gaines, ‘resumed.’

Direct examination. =. = 8 y

By Mr. Baker (continued) :

.Q. Dr. Gaines, before the noon recess, | propounded ‘s

~ question to you. The measurements of the room, the. en.

_ gine room, which I gave you at that time were the approxi.

mate dimensions which were testified to by a person who

_ was working with the deceased who stated that, in accord:

ance with hs (sic) opinion, the engine room was 40 feet long

by 30 foot wide by 18 feet high.’ A) "

Considering tlt as the dimensions, only for.the purpose

of giving us your initial calculation, and without ‘figur-

. ing at all anything in the room whatsoever, but just for

the purpose of the first calculation; could you tell us what

‘your calculation would show as to the concentration of

carbon, tetrachloride?

Mr. Mahoney: Objection, your Honor, in view of the wit-

ness’s statement in the earlier session, that he would have

', [fol. 22] to have the approximate area of the machines in the

room. I object to any answer based 5 this hypothetical

The Court: Can you give an answer? oo

The Witness: Yes, I can. Assuming there was no dis-

placements and specifically, on those dimension of 40 foot

by 30 foot by.18 foot, I can‘give an answer of 21,600 cubie

.. foot of Bir.

_ The Court: 21 what? Cities cone

The Witness: 21,600 cubic feet of air which I converted

"to liters, 395,712 liters. Then, assuming a standard tem.

perature of ar degrees Centigrade in 760 millimeters pres-

sure—— cate ie °

The Court: I am going to interrupt now. There is no

evidence of temperature, is there? How did we get ‘into’

that? : ' : : :

Q. Well, without calculating the temperature,. can you:

give jt to us? .

.*%

an 2

- The Co ti

A. What I have done here, your. Honor, is take. what we

call a standard temperature of,atmospheric pressuré, The

variation in each case would be small. That i is, we are deal-

ing with the vapor stage and as temperature incréases, the

vapor would be increased. So for standard figures I as-

‘onfacts not in the record.

The Court: I sustain the objection.

Q. Without calculating the temperature ‘at this time—

we will calculate the temperature next—will you continue

[fol. 23], your calculations? -

A. Well, I came to the figure of 20, 000 parts per wiles.

_ Is that concentration of carbon tetrachloride ? uet

- A, That is the ogneentration of carbon tetrachloride i in the

room.

_Q. On the basis of the use a

A. 40 by 30 by 18.) :

~Q. On the basis’ of the use of how inch tetrachloritie

over what period?.

A. Six hours, eight gallons.

would that have on the calculation: you have made. of 20,-

000 PPM—in other words higher or lower temperature ?

A. Well, as your temperature increases, your v olatility an-

creases, thereby increasing the concentration.

@ Q. And as the temperature gets lower?

-A. The volatization would be decreased,

far as those figures are concerned, if there is any. vari-

ance? ;

A. Very little variation.

Q. Very little?

A. Very little, until you get down to the f reezing point.

‘Is it requisite that you have Re tempera-

-sume,, what. we call standard conditions, 25 degrees Centi-—

_ grade, which is the average all-year- round temperature. |

Mr. Mahoney :. Your Honor, I object to any answer based

Q. And what is meant by that, 20,000 parts per million? .

Q. Now with reference to the tdinperature: what effect

Q.. Could you tell us how much of a variance there would

be between a low temperature and_a high temperature, as -

B&B

a |

. i .

Q. Now Doetor,, this is- based upon this room without’.

any displacement of any of the. engines, or of any parts

| within the room, is that right?

Mr. Mahoney : Pardon me, Mr. Baker.. | must “pbjest

to any further hypothetical question and answer ‘until the §

__ witness has clarified the effect of barometric pressure which |

. apparently was a bart of his calculation, and which is. not

in the record. :

The Court: Did you refer to bainetiss pressure { E

The Witness; Yes. 760 millimeters standard barometric |

pressure. We are dealing with a vapor and two. things,

two factors that affect vapor are atmospheric pressure and |

[fol. 24] temperature. That is Charles and Boy le’s Laws. |

Aw ie pressure goes up, the volume goes. down.: As the

perature goes up, me _volume-will increase. And since ;

. we are dealing with a vapogy’atmospheric conditions ‘are to.

be considered, so,-in Order to be on the safe side in this

hypothetical question I have assumed the ideal average: |

atmospheric pressure and temperature for our latitude and

longitude i in coming to this calculation. fortes

Q. And what is it that you assumed? °

A. I used 25 degrees Centigrade and 760 millimeter pres-

sure. .

_ Q. If there is any variation in that; rae effect would

_ it have on your final outcome of 20,000 PPM?.

° sak would have very little effect on that huge volume.

Q. And the allowable safe concentration you have ie

cated before is a figure of less than a hundred PPM;

_» that correct? (

' A. By personal choice, the 75 parts per million i is Iny own,

- but the MAC choice is 100.

Q. So that the figure you have of 20,000 is 206 times the

allowable safe concentration? eee en 7 ake

A. Yes. : i

| Mr. Mahoney: In view of the witness's statement I re-

. peat my objection, your Honor. He has assuined facts not ,

_ in evidence. . .

‘ Phe Court: Weil, he has also said that the temperature

and the barometric Preseges wo ld make very little dif.

— i f “= ee eras 6

r echo ma ier

: ; : / ee : ;

ference in the énd result in/that volume.: In view of that,

statement, -I will allow it to stand. '

Mr. Mahoney * Exception.

SA nye * * Bee aoe na ee *

Q. Now, Doctor, we have indicated to you thaf in ac-

‘cordance with the evidence submitted here, and in he-

cordance with, the photographs, there was a ventilation

- [fol. 25) system by duets in the geiling of this engine rom in

‘-which air was being brought in to this engine room, W hat.

effect would that.have upon the concentration of carbon.

tetrachloride in that room? j

- A, That -was covered indirectly in my introductory re-

marks this morning when I spoke about dilution. Introduc-

“ing air from the upper level: would act as‘a dilution of: the

air in the room. We had established on many occasians Phat

~ you would have to bring in 225,000 cubic feet at minute to.

bring a concentration down to the safg level. |

Now, the answer. to your question, sir, soa be, A, the

effect would be that of dilution.” Now, how much dilu-

tion, I would have to know how much air is being brought

= oe . . * oe, ; . c'¢@

: Q@ In addition to that, there was a blower which ex:

‘hausted from the room, and this' blower was loc cated about

‘seven or eight foot above the floor of this engine room? —

A. That ‘would have some effect. How much effect, 1 |:

don’t*know. What is the capachty of this blower? How many

cubie.feet per minute is this blower taking out of the chain.

ber? I would have to know that. I will say that it will have

some effect. . . 4

* Q: Would, it. be sufficient,’ ‘wigh the dimensions and the

- information that has been’ given to you concerning th

So 6f carbon tetraeliloride which was put into this:

rogm during that period of time, would it: have sufficient

off to reduce this: concentration to a safe concentration? |

A. In order to reduce it to.a safe concentration, sir, you

would’ have to remove 850 cubic feet of.air per minute. If

your exhaust fan or blower removes that amount’ of air,

and that-is quite a bit of air, then you are having a safe

condition, but if it is wong any thing less tlian that, if vou

: 1

are removing anything - ais than that, you are - havirig no &

effect at all, or very little, if any.

* * * * * as *

[ fol. 26] Q. Ih what areas, in what’ particular: places and

areas is the use of carbon tetrachloride dangerous? :

- A. Well, the first prerequisite is ventilation, adequate

ventilation, and if you conquer that, why, then it is all right. .

It has been for many years a household preparation.

Cross examination. ’ e

‘By Mr. Mahoney:

Q. Doctér;~you testified to a calculation that you had 7

-madeé based certain factors called to your attention by §

Mr. Baker, | and please correct nie if my understanding of §

_it is improper. You were given certain dimensions which. §

3 “permitted you to calculate the. area of this compartment,

is that correct? .

eS pay is correct. . :

ou were. also given the fact that a certain

Friday f carbon tetrachloride had been ‘used up over a

certain period of time, is that correct?

A. That is correct. —

Q. And based on those’ two factors’ you were able to

-calculate the concentration that was present -in that com-

partment on the day in question?

A. The averagé ‘concentration. .

Q. The average concentration over a period of six or

seven hours, or whatever it was?

A. Six hours. |

3 6 G5 33 as i ee ie

Q. Your calculations of so many parts per million aver-

age concentration did not take into consideration, I as- .}

_ sume, any types of ventilation that were erenent at that

time, is that correct. .

A. That also is correct.

Q. So then the figure which you gave—incidentally, would

_ you remind (sic) repeating the concentration . which you #

arrived at? © |

A: 20,000 cual per: million.

—, :

. Per million. That figure does not reflect the opere

of an individual, does it?

A. That figure represents the concentration of the average

_the average concentration of carbon tetrachloride in a

fol. 27] room of that size, and that assumed temperature

and at the most frequently used pressure. Exposure, ac-

cording to accepted eee f rom one- -half to one

hour is dangerous.

Q. Doctor, what I mean. is this. You igave a figure. which ©

represents concentration. Then you told us that exposure

depends upon. extrinsic factors, is that right—the types of

protection available, the an fair st of ventilation, and things

of that nature? Is that a fair statement? me

A. No, I would say ‘that’ exposure is as it indicates, ex-

— Now how much danger or’ what damage tray have

‘an lted from that exposure—then, sir, that depends upon

whatever protective nieastse may have been _introduced,

= :

whatever there is, such as ventilation or prptective € lothing,

and so forth. ] pols

‘° | . . t » r me 2s .

. No, Doctor, I am ‘merely asking you to comment

on my understanding of your testimony. (Would it be fair

to statethat the amount that pe etrates to the individual!

could only be determined when you take inté consideration

such safe ards as ventilation, fame, doors, Ea masks and

e ee

* . * @er- e:\

0 Doctor, I ask you, would it be fair for me to interpret

the situation?in this manner: that a certain percentage of

this 20,000 parts per million. would be diverted from tiie

individual by the various\safeguards that may or may .

not exist in-a given case?

A. Yes. The individual that is exposed i is \ecatiiie

How much he breathes in will depend upon. the protective

measurements’ whieh you have taken.

. ’ %o .

A. Yes.

‘[fol. 28] Q. ExpoSure could be defined as'the amount that

penetrates to the individual himself, is that right? .

A.-That’s correct. \.

Q. Thank you, Doctor. That is my only probler? Now. F

you were never aboard he boat in question, were you! §

A. No, I wasn’t. is

Q. And you had no shar tack ledge of the circumstances

| other than.those posed to you by counsel, is that right, sir!

A. That’s right.

Q. Do you know, for example, the power of the feetnis:

which operated the blower system in the engine: ‘room?

A. No, I do not. -&

Sn Would that be an important factor in determining |

their. efficiency?

Yes, that would be. In fact, I raised that question. |

. Do you know the horsepower of the motors in the

eo system which was designed to draw vapor from the ~ ;

compartment? Of

. ee “- |

Q: Would that be ani portant factor in determining i

whether or not they were. adequate?

A. Yes. | : f

Q. Would it not be true that the horsepower of the motor”

‘ which operated this portable exhaust would have an im-

portant effect-on its adequacy? «

A. The horsepower of. the motor?

Q. That’s correct.

A. Was this blower divested (sic) connected to the arma.

ture of theotor?

Q. I haye no idea, Doctor. . :

A. Weil, sir, there again you have a transmission Prob

lem.

_. And you do not have that information, do you?

‘A. No.

[fol. 29) Q. Doctor, you don’t know of your own knowl-. -

edge in what. direction this air hose was pointed? = fs

A. Sir, it appears to be logical _— the hose would be go- .

ing across the face.

Q. Well, that is an assumption, is it not?

_ A. It is an assumption,

Q. De~you know, for gry what — was ‘used

in this-air hose?

A. No, I don’t.

. Q. Now, Doctor, do you have any siti tenttiarky with

a ventilation system in common tse aboard vesseis?,

A. No, I am not an engineer, andl certainl},am not a nau-—

tical engineer. if

Q. Do you have. a genéral know edge of. ventijation sy S-

tems? .

A. A general knowledge. 1 woul n’t say peas or ade.“

quate or thorough. I could tell them what I want in an”

official capacity. I mean, I demand this-ahd this ventilation ©

‘and it is up to the engineers to meet those requirements.

Q. But in your work as a chemist, and \in your lectures

and your writings on the effect of noxious substances; such

as carbon tetrachloride you do have a working knowledge,

I assume, of the + Jecuemretn! of mechanical ve tilation SYs-_

tems? '

A. Yes, 1 have an. acquaintance with then.

Q. ‘Now, does not thg adequacy of any ventilation Pee

depend upon its mechanical power to a great extent?

- A,ATo quite an extent. And also to the design of the

duet

Q. Now, these are factors Ww hich you have no ruler knowl-

ra of in this case? ,

an No. All I can do poner and that is what I have

done. I say that if you want to use this and this substance

_in this and this room, I want you to: be able to remove so

much air from this room, and I want the removal from the

lower’ level. or the upper level. y

Q. In this particular. case you have no direct er m7,

of such things as the power of. the’ system in ‘use, have

[fol. 30) you? :

A. Ail I:want them to do is to. remove so many cubic:

feet per minute. -

«,. , @: But again I say in this particular case you have ti

O° knowledge of your own *concerning the power of the sys-~

~ tem? SOA gear erence aaa ;

_ A. That would: be required? paar Nsw Syn

Qe Tea. - eR ae %

' A: No. I could not specify “whether to use a quarter.

horsepower or a half horsepower, °™ :

Q. In fact, you don’t know what was used, do you?

A. Certainly not, = zea? : |

O50 ae ae * . . .

Q. And I think it is ‘accurate to state that ‘there are

‘masks which may afford complete protection against one

exposure which would be entirely used uselessly if used

in another exposure? | | an

ae | | ; 7 .

Q. Here again you don’t know what type of Ingpk was

used? — : ” eee ro a

ms Ge 8 By» >

\ "

Q. You don’t know, I assume, how recently the cannisters

of that particular mask were inspected, do you you? (sic)

A. No. + . ‘ : =e :

er . ° ees -) % «@

Q. So actually, Doctor, the presence of these various

devices that haye been described to you would affect the

concentration to some extent, is that correct? ~

A. We would have to break that down. I don’t think it

would be fair to make an all-inclusive answer to that ques-

_ tion because there are quite a few factors to be considered.

. Q. I haven’t asked, Doctor, ‘to give us your ‘estimate

\\._ of the concentration after tliese devices had been used, but

\ weal it be fair-to state that there would be some effect!

A. Yes, there would be some effect. . a San ee

ee yee ° ® ey ge te ee

_ Q. Well, Doctor, what do you say ‘would determine

the efficiency of an exhaust system on board'a ship? Would.

the size of the blades have anything to do with it.

(fol, 31] A. The size of the blades, the shape of the blades,

_ thé angles‘at.which they are‘set. —— oP oe ei yee

/ Q: Well, these are things that you don’t ae any know!- —

/ edge of? | |

5 Qu

—

- A. And the ducts. «You asked me a question as to whiat

you ask me to design it for pos cna

Q. No, Doctor. | : |

A. You asked me what would: be manived to go——

Q. I think you have answered the i very satis-

factorily, Docter.

no direct know ledge of the circumstances in this particular

case

A. Direct knowledge? No.

, Be Ss Ge Teen, ° *

Q. Doctor, is it not a fact that any calculation, or any

evaluation _made hy. yourself -as.to the adequacy of: the

various types of ventilation un board this vessel must neces-

and other. circumstances which are apparently not within

vour -knowledge?. Is that not so? -

_A. Yes.

course, would depend upon the effectiveness of the ventilat-

. ing units; is that correct?

The itness: “And the amount af material present.

The Court:* When you say the amount of. material pres-

ent, I don’t follow that.

‘or a gallon bottle, or five gallons.

The Court: Well, to put it more speciiically, I thought

my. question was clear,. you, gave a figure of 20,000 parts

per million, Is it correct.to suggest that that‘is the maxi:

~ [fol. 32] mum which does not take inte account. any-of the

ventilating items coritained in that?

The Witness: Yes... —

The Court: Because in reaching that’ figure you excluded

all ventilating factors.

-. The Witness: Yes, I used that i ina confined area., —

| The Court: And accordingly the actual concentration

per million in that engine room would depend upon the

effectiveness of the ventilating units? oo

Now, my next question is, is it not a fact that you have.

sarily be based’ on infofination concerning the size of the -

equipment used, the pitch of the blade?as you have told us,

The. Court: The: actual Sdiieeniration in the area, of —

The Witness: That is, whether jes used a. pint bottle

would be efficient, and | can answer that question. But if e

32 .

_' The Wifness: Y

"measurements without

‘The Court: 1-understand that-\nd whether or not the

.. Ventilating units were effective or ineffective would de-

pend in some measure upon. facts wi spe i

operation and efficiency for which you do not.have-— .

"The ‘Witness: I am not an engineer. \

—

and we believe that we used “those.

ewing for displacement by equip-

Q. Well, Doctor, my question in effect was, cannot a_

person, such a person with a susceptibility, be damaged or

' injured, seriously perhaps, by a concentration so slight that

. it would not affect a normal person? |

-A. Yes, it is possible.

. J

* rf e-> @ > s “ ~* =

Mr. Mahoney: “When carbon tetrachloride and alcohol

- are- iven) simultaneously, - the: toxicity of the former is.

preity imlovened* ae é oo

The Coart All right.

— Q. Do you consider that statement accurate!

A. Yes, that is a gaod statement. et ome

> . * e.- * = *

: 7 \

(fol. 33] Q. You have no idea, j suppose, from what you

have told us, whether or not any of these particular devices

~ Were operating properly,.is that right? °

A. Of course, that’s right. a = on

Q. You don’t know, for example, whether the portable |

equipment that was brought on board wax operating prop.

erly, do you? _ ao :

A. Of course not. bapa ee, |

_ Q. And you don’t ‘know, as you have already told us,

_I think, whether the gas.mask was adequate or whether it.

. Was operating correetly or whether it was inspected, or °

anything of the sort, do you? a Ph

A. No. | | * .

Q: And you don’t know. whether the permanent ventilation

_ equipment aboard the ship was adequate or not, do you?

A. Of course not.

Mr. Mahoney: That’s all, Doctor.

By Mr. Mahoney :

Q Doctor, from your previous statement, is it correct

for us to understand that if the air hose in question was —

near floor level, that i it would be efficient. in sireulating | the

air?

A. It wolild help, yes, quite ie \ eet \

‘Mr. Mahoney: May I continue? ‘ ee

~ Q. In view of your priof s statement, Seite, concerning |

. the exhaust. equipment which was‘a permanent part of the

ship, I think you stated to his Honor that the existence of

an exhaust system would play an importa part in your

- evaluation, is that correct ? eeu at nee

‘A. Yes, I did. oe

- Q. Now, you don’t know, for example, how many outlets;

permanent outlets, there were Aboard this partic ular ver

_ sel, do you, exhaust outlets? | py | 7

A. No, Ido net. - 7 i \

fol. 34) Q. And you don’t knoe the Jncation ofall of the

outlets aboard this cmuemeal ves ssel, do yout é

A. No, I do not.

Q. And again you do not know whether these particular |

exhaust outlets were powered by a small motor ora big,

motor, do you? .A. Of course not. ;

— * ‘And: you don’t know whether their shape was -con-

dueive to efficiency or whether the length of the blade was

six inches or eight inches, oF any of those factors are not

within your know ledge, are they?

A. No.

Q. Would those factors not play an inj ortant part in

any evaluation you make of the dilution vr ’ the: ventilation

within that engarteent |

, Mr. Baker: I — to it.

A. Yes. :

Mr. ie: It is fully answered.

The Court: The answer is yes? |

' 34 :

The Witnexé: *

a ke

> 3 .

. .

* . ,

SS) . E

eo e *® e -

=a ?

f eee

_ Redirect examination.

° - By Mr. Baker:

Q. Doctor,- considering! these facts to be true—that on 3

_. September 29, 1951, the deceased, Walter Joseph Halecki,

was working in the hold of a vessel, as shown in accordance

‘with the number of photographs which were presented to

you during the course of your examination, and considering

the fact that he was cleaning the generators in the engine

room and that he used. during the period of time that he

worked eight gallons, or approximately eight galldns of car-

hon tetrachloride; that he started to work about 9°0’clock

that morning ‘and worked until about 3:30 that afternoon;

. that he did the spraying for 15-minute ‘intervals, namely,

_ worked on spraying for about 15 minutes = then was off

and went upstairs and out of that room for bout 15 min- _

(fol. 35] utes, and then went down again; considering the

. fact that during the course of that spraying he wore a gas

mask, Army surplus type, cannister type; considering also

the fact that in this room, which has been de ribed as the

temSof the vessel which has been show

. ” the’carbon tetrachloritie and the other air hose

purpose of blowing the fumes away from the fa

approximate size of 40 foot by 30 foot and

‘the outside dimensions,

in this room, two generators, which were bei

_ taking into consideration that the ceiling of t

the ceiling of the room was the heart of

graphs, and that the outlets were in th

into consideration that in addition to that

blower, two-air hosés; one used for the purpos¢

son who was using-it, Mr. Halecki; taking into ¢

that there was also a fan, a circulating fan, on

the engine rodm, and that there were also two

were above the floor of. the engine room, . ay

six foot or so above the floor; taking also int

tion that there were transoims which were sl

of the photographs which were located: above

foot high, as

that there were various generators

cleaned, anil

e room-or in

the ventilating sys- |

n in|these photo-

eeeiling ;

and taking:

there was a

> of spraying —

used for the -

pe of the per-

onsideration

the floor of

doors which

proximately

D considera- -

own if one

the engine

« |

- room, as shown’ in photogra h B, which were open; and

taking also into consideration the fact that there was a

blower which was used to ¢xhaust the fumes from this

engine room which was placed and tied to a rail and face)

ing into the engine room, /th¢ rail being shown in this |

photograph, Exhibit 9, anfi that the blower was facing

_/down into the engine roony and tied to this rail shown as :

‘in photograph 9, that this blower Was operating during) — -

the time that this work was going’ on and was exhaustin

| out; taking into- consideration that this man wore a gas

mask of the type which Has been described for the period

of time that he was in the engine room doing this work,.

and taking also -into consideration the fact that when lhe

(fol. 36] went home he complained of a. sweet taste in his

mouth, or a taste in his mouth. and that he was then confined

to bed, he was treated by a physician for several days and

then. went into the hospital, where.the complaints were

that on. the Saturday previous ‘to his admission he had

been spraying the generators, that he had that evening an

onset of nausea and vomiting which was still present on

his admission; that he had headaches for twopor three

days prior to his admission, diarrhea and oliguria for.

‘one day; taking also into consideration that he was treated

at this hospital and, in accordance with: the records, he

‘had a renal and hepatic failnre, and the final diagnosis was

a carbon tetrachloride poisoning, and taking also into con-

sideration that an autopsy was performed on..this man,

which autopsy showed. a carbon tetrachloridé poisoning

as the. anatomical diagnosis with thexe’ specific findings:

necrosis of the. liver, a lower nephron nephrogis, a necatiz-

_ ing bronchitis with severe hemorrhage, a broncho pnev- -

monia, a subarachnoid hentorrage, (sic) agites and jaundice

_ —taking all of these factors into consideration and as- :

suming them to be true, would you say that it is your,

opinion that his exposure to the fumes of carbon tetrachlo-

- ride was an exposure to an excessive accumulation or con-

centration of fymes during that. expasure?.

\. Mr: Mahoney : ‘Exception, please.\ With\alk due respect

‘to the doctor’s qualifications, I objec “to an answer based _

n medical testimony. ; ey Pen

The Court: I sustain the obje¢tion, and also on the gfound \

: : ; OF

that I suggested to you that you put a hypothetical question

: to this witness based upon facts as to which there is évi-.

‘e dence. These facts relate to: conditions in the engine room.

And you have again read into your hypothetical question

” a great many items which are referred to in the hi tory.

. [fol. 37]. If you will start at the point where he as home, -

f assuming that he Went home én such a day—do you follow :

ee that? — |

_ ‘The Witness: Yes. --. " ~~ Se Ste SSS

The Court: In other words, just referring to conditions

-, in the engine room ag they are outlined to you by counsel,

_ do you ‘have any opinion that you can express with reason-

_able certainty .as to whether or not the ventilating’ system

in that room was reasonably adequate in order to remove

the fumes? . et mites PLN

The Witness: -I have an opinion.

‘The Court: And what is your opinion? — paws ©

. The Witness: My opinion is it was not adequate.

.The Court: All right, ‘that if yout opinion, That is all

you want? — Sa Rape shat See

Mr. Baker:. That’s all. | are aaa :

> ery ee * | e-. ° .

| . Micron HEvpery, called as a witness on behalf of defen- _

dant, being first.duly sworn, testified as follows :

a ae

- *» Direct examination.

7 .

; By Mr. Mahoney: * EM Spb arog:

Q. Doctor, are you licensed to practice’ medicine in the

State of New York? eho: A :

A. Yes, . an eta |

_ Q. What date were -you licensed, pleasé?

A. 1926. .

Q. And what is your present occupation, Doctor?

A, Well, Tam a physician. I am the Chief Medical Ex-

aminer of the City of New York, and also Professor. of

Forensic Medicine at New York University, Post Graduate |

Medical School, and Assistant Press of Clinical Medi-~

cine and lecturer in pathology 4t the Cornell University

Medical College. * . °

Qs)

= . . =, 37

» 7

Doctor, how long have vou been associated with the

Medical Examiner’ ~ ‘office?

A. 25 years.

. * a ee * . . *

.[fol. 38} Q. Is it possible to state, Doctor, the concentra-

. tion that would be harmful to the average individual?

A. Well, that is very variable... .

Q. Depending on what factors, Doctor?

A. Depending upon ‘susceptibility of the individeal. ‘

Some people are much more susceptible to the effects of

the vapors of carbon -tetracbloride than others.

' . Q. Well, is it possible——

A. Excuse me. That also applies to persons whe swallow

carbon tetrachloride. In the old days carbon tetrachloride.

used to be used in teaspoonful doses to cause the elimination

of tapeworms and it was commonly used, but a certain

number of the patients reacted adversely and it aw longer

is used for that purpose.

As far as the effect of a given concentration ot yapo-,

that depends onthe individual as well as on the concentra- .

tion. Givdn to people in the same environment, one may be

severely or fatally poisoned and the other person might

not even be rendered sick.

Q. Is it possible for a person, given predisposition you \

Bi Pesto to’ be seriously injured, even fatally injured,

by an exposure: which would be harmless to the average

individual ? pe) c:

. A. Yes, there are cases like that ;

Q. Doetor, can you tell us page’ within your.

' experience, create this susceptibill or predisposition you

have told us about?

A. Well, L, think the evidence medically goes to show

- that the alecholi¢ person is peculiarly susceptible to the

toxie effects of carbon tetrachloride. The alcoholic—es-

_ pecially the person who has been drinking aleohol at the

time~ of | exposure—is very susceptible, often to amounts

of the poison which might not affect another. person,

inhaling the same concentration. In other words, in the

_same incident, two people can be exposed, in the sine room,

a person wader the influence of aleohol'and another person

* not under the influente, of alcohol, and the alcoholic. will

"come down with poisoning and the other person might not

even become sick. - -—

* :. ‘~*s “7 e e stk

(fol. 39} Q. Doctor, would the history of consuming a half-

pint of whiskey a day for five months ‘preceded by the con-

sumption of twe quarts of beer a day for ten years create

a condition of an alcoholic? |. ee a ge

A. It would give me the impression that the individual!

is an alcoholic. If. that amount is consumed every day,

it would give me that impression: That does not mean that .

the person is necessarily a person who cannot-—get along

with people, or anything like that at all.. If that.craving

_ -is there, and that much alcohol is consumed, that is a. fair

- amount, and those ‘estimates are usually quite rough. They.

are never precise, and my own reaction to that is that it is

always.an understatement rather thaa an overstatement.

Q. Now, Doctor, such a person as the one you have de-

' seribed, and a person with the history that I have read to »

you, would that person be ‘susceptible to an exposure—'

when | say “susceptible” I mean susceptible to serious in-

jury and death—to-an exposure so slight that it would not

affect the average person?, — - “plots

. Mr. Baker: I-object to that. There is no evidence here ;

of a slight exposure. BNL cae 7 | fe

~The Court: Well, cast the question in a different manner.

Would such a person have a readier disposition to carbon

tetrachloride poisoning than a person who did not consume

‘that quantity of liquor? : : 3

The Witness: I'think yes. ae

Q. Well, Doctor, assuming an individual with ae !

of consuming a half-pint of whiskey a day for a fivonth .

period following a history of consuming two quarts of

beer a day for a ten-year period, and assuming that indi-

vidual worked ‘for ‘approximately a six-hour period with

carbon tetrachloride, and assuming that individual éub-

“sequently was hospitalized suffering from nausea, head-

_ [fol. 40] aches, and ‘so forth, and assuming ‘that he sub-.

sequently showed indications of liver damage, of renal ~

a. : “ae "

ee pd 89

_insufficiency, apd that after a 12-day period that individual

expired, and assuming that upon autopsy it was found that

the individual displayed abnormalities of the liver, do you

“have an opinion, Doctor, as ta the causal-relationship be-

tween the man’s illnéss and death and his prior ‘history

of alcoholism? v4 : 7 eos

Mr. Baker: I'will object to it. There are a‘number of

deficiencies in the hypothetical question. How much carbon

tetrachloride? To what extent? I mean, there has been

_evidence in the case to the extent to which he has been

exposed and—— 7 . 3

The Court: You may. ask him about that on cross-exami-

nation. | will allow the question. |

A. I don’t think there is any question that this gnan died.

. of ‘carbon tetrachloride poisoning. With the history as .°—

* you gave it, with the background. of alcoholism, I think |

it is also. reasonable to conclude that that made him more .

susceptible. :

Wituiam M. Frxkenavr,, called ‘as a witness on behalf

of. the defendant, being duly sworn, testified as follows:

_ Direct examination.

By Mr. 'M ahoney:

Q. What.is your occupation, Mr. Finkenaur? |

A. I am a ship’s surveyor and consulting engineer.

Q. You mentioned sometime ago that you conducted some»

tests aboard the pilot boat New Jersey. :

~ F

A. Yes. ) ; | ; é

(fol.41} Q. Will you tell us what those tests consisted of,

please. . : ae

». A. Well, we put some oily rags into a small tin can and.

Rt them: on fire ‘to make a smudge, and placed that can

at different positions in the lower engine room to see if

there was a series of air currents that would carry the

- air about, and we found out that there was.. We could

ee eee

40° rae a . : N Pee Mee

- also see he effect on the smoke of the air that ean down E

through the blowers.

Q. Well, will you. tell us what effect the Digwer. and

exhaust system had upon dhese smoke _Pots that yeu told

_ us about? Noten

_ A. Welly it was a positive demonstration of the fact

that thefe was circulation of air in that engine room. ..._ &

an Well, specifically how was that fact et, Be

to you? ;

- A, By the. moveriient of the smoke,

“Q. How did the smoke move?”

_ A. It/moved away, of: ‘course, from the air that was blown

“in and towards the air that was drawn out.

.Q.Did the exhaust system ‘that you had in oo

draw the ‘smoke. from the engine Yoomt ae

A. It did; ‘yes. ‘3

ie ; hd s : /@ & ad ; *

. .

-+ Q. In ‘your opinion was the system of ventilation ade- :

‘ quate to operate on the pilot. boat New Jersey?

‘A. It was. .

' Q. For what purpose was that tentilation system con-

structed, within your experience?

A. It was constructed for the purpose of making the ‘

engine room a cugatortabte place for the engine room crew

to work. - : 3 ' iy or 4

* s * . . * as

; fave ,

Daveupanss’ SORE at CLOSE oF Piamriry’s Case:

"AND ACTION THEREON ‘

‘Mr. “Mahoney: “The defendant further mov@ that the

action be dismissed on the -specifie ground that the plaintiff

has shown no right to relief. He has established no causal

connection between any act of the defendant and the de-

..~ eedent’s death. —

‘. [fol, 42] . Insofar as the negligence cause of action is con-

cerned, he has failed to establish control or a duty. on the

part of the defendant:

‘ Insofar as the seaworthiness cause of action, he ‘line

failed to establish that-the defendant failed to wapply h rea-

sonably Boag jaeceah equipment.|

Pe,

4 © 2 ‘ %.5 . . > v

? - 7

® : ¢ , , 41

bd . 3 . ’ °

In addition, the Parveen ee moves for a directed verdict

on the saine ground and on the further ground that there

is no genuine issue of fact for the jury’ 8 consideration.

+ & * * . . 8 a

The Court: The motion with respect to the aegrierate

claim is denied. /4

Your other motion was with respect to the dain of : :

unseaworthiness. What is the basis of the motion there? °

..Mr. Mahoney: As I stated, the defendant’s motion to.

dismiss ‘the claim of unseaworthiness ‘is based on the po-

sition ithat the plaintiff has not established that the -defen-

dant Ses hae any way to ‘supply mete adequate equip-

ment.

The Court: Tait that a question of fact particujarly

in view. of the pagent Ibe by the witness, Gaines that

in his opinion the ventil System was inadequate?

Mr, Mahoney:. I respectfully point out that Dr. Gaines’

ion.and upon speculative grounds,

The Court: Well, that is a question of fact for the jury

sao was admittedly based upon inadequate. infor: :

to pass upon and you developed, in part, that there were

certain factors that had to be taken: into account.

On the other hand, in answer to a very full hypotheticai

question based upon conditions as related during the course

of the testimony of other witnesses he specifically stated

that in his opinion it was inadequate. Whether or not, it

was is a question to be passed upon by thie jury. =

Mr. Mahoney: | respectfully except. :

* . i: es . it ah

{fol. 43]- re

, Derexvants’ ‘Motion aT THE Ciose or THE Ev IDENCE

AND AcTION THEREON’ | Bea

Mr. ‘Mahoney :: The defendant at this time renews the |

motion for a’ directed verdict on the ground that there .«

has been a complete failure of proof in establishing either

that the defendant showed lack of care in any regard in-

sofar as the negligénce cause of action ‘isconcerned, and,

moreover, that there has been no testimony based on fac-

tual evidence that the defendant failed to supply the de-

cedént with a safe, place in which to work. | :

The Court: * * * I hold there is a question of fact for

the jury to pass upon. Your motion isdenied.

_Mr. Mahoney: I respectfully except |

kere ee Se re hee

Derenpants’ Requests’ To CHARGE

1, The decedent, as an electrician’ employed by’ an in-

dependent contractor, was not entitled to the “warranty”

of seaworthiness. : 2 ele tte Se

6's ” '_* 7 & +d .

_ 4. Where the testimony permits. more than one ie |

ence, the jury cannot speculate. ‘and the party having the

burden of proof must lose. | : | Hee

. . << Sse es -@ ° »

. ae re found that the defendant was negligent and if

te tj is found that the decedent was contributorily negligent,

_ . such contributory négligence is a comapiots bar to Teeovery

-by the plaintiff. |

* A. Tee canis ieee

[fol. 44] ; CHARGE OF THE | Court. 7 ay

_. The Court : Lethon and Gentlemen of the pee At the,

- time of your’ original ‘selection as jurors, I told. you that.

fou. principal function during the progress: of the trial

ould be to listen carefully to the evidence and observe

the witnesses as they testify. It has been evident to me_

that. you have followed the testimony in the caxe with

keen interest and that. you have a full grasp of the fact-~

that are in the case. At this time you are about to enter

upon your final function as jurors, and.tliat is to pass upon

the fact issues that are in the case. ©

You are the sole and exclusive judges of thé facts. You

pass upon the weight. of the evidence. You determine the

credibility of the witnesses and you resolve such differ:

ences as there. may be in the evidence. /

You are required to.accept my instructions as to: the

law and to apply them to. the facts as you may firid thei.

. In your determination of the facts, you rely upon your

‘own recollection of the evidence. What I have said from

43.

time to time during the progress of the trial, what |

may say during the course of these instructions with ref-

erence to the facts, whatever counsel nizy have said during

the trial or during the course of their summations, as to

the facts, are in no respect binding upon you and are not

to be taken by you in piace of your own recollection of the

evidence.

Before we consider the law that is sipplinnbie to the case

proper, I think it is desirable to emphasize a matter to.

which I referred when you were first selected as jurors.

The fact that this action is brought to recover damages.

for the benefit of the widow and the children of the dé-

-eedent, must play no.part in your eonsideration or delibera-

tions. -However much we may sympathize with them be-

_cause of the loss of a dear one, the plaintiff in this action |

may not recover unless, just as every other plaintiff in a

civil ease, she meets the burden of proof which the law

(fol. 45] casts upon her, as I shall outline it to’ you in these

instructions, and I am sure that the plaintiff would not

have it otherwise.

, You play a most Snmpobtint rolenin the administration

_ of justice. Justice cannot prevail if sympathy, prejudice or

‘bias enter into your deliberations. If: they do, you no

longer render justice. Your oath of office is to render. jus-

tice fairly and ‘impartially, without fear or favor,’ ani

solely upon the evidence in the case. And I have no doubt

that each one of you will fully. live up to your oath of

office. ‘

The plaintiff seeks to hold .the defendant, the United

New York & New Jersey Sandy Hook..Pilots Association,

which I shall refer to hereafter as either the Association

or the defendant, liable for the damages occasioned by his

death, upon the ground that the Association, as owner of

the vessel. New Jersey, violated‘ Certain duties which it

owed to Walter Halecki, as one who worked upon its ship. -

Halecki, as you know, was not an employee of the Pilots

Association. The Association had engaged the. Rodermond

Corporation to do certain repair work on the New Jersey.»

- and in turn, Rodermond subcontracted the electrical repair

and-cleaning work in the engine rdom of the ship to/the

K & S Electric Company, by whom Halecki was employed.

; : . ‘ , ae

: \

:— ‘ |

44 : I

‘The plaintiff entoihe that the défendant: ‘is liable upon

either one of two alternative theories. The first ground

of recovery which the plaintiff advances .is- that Halecki,

in repairing and. cleaning the generator, was perform.

ing a task in the ship’s service usually done by a crew

member, and therefore ‘the defendant, ed hii the duty

to supply a seaworthy vessel..’The segond ground is that,

as an invitee upon the ship to do fie job as specified in.

the repair order, the defendant owéd him a duty to supply

a reasonably safe place in which,to work.

Since these alternative theones. involve different con-

‘cepts of law, although if end’result the basic responsibility

> [fol 46] may appear ta merge, we Putas consider eneh claim °

separately.

' The-first theory is habed upon a: histori¢ doetelins of.

the sea ‘known as the warranty of seaworthiness. This

imposes upon-the owner of the-vessel the diity to supply .

crew members with a seaworthy vessel—that is, one reason-

ably fit for-the purposes for which she was being used.

This warranty of seaworthiness is not-limited to/the ship

proper. It extends to and includes. all equipment, ma-

chinery. and appurtenances. Thus, the owner of-a ship is

under a duty to supply ‘and keep in good order’and con-

dition proper appliances and equipment. reasonably ade-

- quate and sufficient for the work to be performed, and this

would include an adequate ventilating system. This-means

that the ventilating system must be reasonably fit for its

intended use, and if not, the vessel is unseaworthy.

Halecki, as an electrician engaged in cleaning the gen-

“erators, was performing a function usually carried out by

a ship’s crew. Under this circumstance, the law imposes

upon the defendant, the Association, the same duty it owed

to its ‘regular crew membefs—that is, to sly Halecki

with a seaworthy vessel. “8 Pn sent !

Incidentally, the- fact that Halecki was an employee of .

the K & S Electric Company does not affect the duty owed -

him by the defendant Association, Its duty was non-

delegable—that is, it could not be delekated to or trans-

ferred to anyone’ else, and it existed without regard to

_ «whatever duty Halecki’s own employer or anybody else

owed to him.

‘ °

eR a

The. shipowner’s ‘absolute and non-delegable duty to

supply” a vessel and. appliances adequate’ for the work to

be performed, ‘existed regardless of whether or not de-

fendant had control over the vessel or ifs appliances.

This absolute duty is ‘nposed upon the defendant, whether

or not it knew of the defective equipment or inadequacy.

{fol.47] or msufficjency of the appliances, should such be

the fact,

“Tf as a result of the unseaworthiness-of the vessel a crew

member or oné engaged in: performing a crew meiichabis s

work is injured, then the owner of the ship is held abs¢-

lutely liable, even though it was without faylt. m other .

words, even the exercise of reasonable care does not relieve.

the shipowner of its obligation to furnish a seaworthy

vessel and reasonably adequate equipment and appliances.

This concept, under the first claim, as you will soon sée,

is quite different from that involved in the plaintiff's, al-

_ ternative or second theory. — :

The essence of the plaintiff's first. claim is that carbon

tetrachloride, which was specified,in the repair order for

the cleaning of the generators of the engine room, was a

known dangerous substance ; that in order for men to wo1k

in safety, it-was necessary to have an effective ventilation

\ system | ‘to remove the fumes; that the ship’s ventilating

‘system, as supplemented by the exhaust blower, the ai—

hose and other equipment, was” € for the use

for which it was. intended—that is, to remove the carbon -

tetrachloride furnes so as to render the enginé room i

reasonably safe area in which to werk. This is the sub-

stance of the plaintiff’ s claim that the vessel was unsea

worthy. mre

The defendant denies the plaintiff's charges. It affirma.

tively contends that the ship’é ventilating system vith the

-auxiliary items, was reasonably adequate. The burden of”

_. proof that it wa® not reasonably adequate for its intended”

use is upon the plaintiff, and this she must show by a fair.

preponderance of the evidence, which I shall. presently

define. —_—_

. The ‘mere tack Sat you should find, if you do ‘so, find,

that Halecki was: poisoned: bv inhaling carbon tetrachloride

in the. engine room and died as a result. thereof, does not

establish the plaintiff’s claim. Indeed, it is conceded in

(fol. 48] this case, as I understand the defense, that he did

in fact die of carbon tetrachloride inhalation. But this does

‘not prove the plaintiff’s claim. The defendant was not an

insurer of the plaintiff’s safety and it is not liable for any

and all injury to those ‘working on the ship. It may only

- be heldlable upon proof that the vessel. was in faft

unseaworthy. | 3

The warranty of seaworthiness ok not require the

best possible equipment. Whether or not a vessel is/sea-

worthy and its appliances adequate. depends upoi time,

place and circumstance. ~

Here the New Jersey was undergoing repairs. | The basic

question is whether, under all the circumstances, the ven-

- tilating system was reasonably fit for the use for whic!)

it -was intended, and- here where I.refer to “ventilating

system” I ani sure that you understand I am also including

~ the auxiliary parts which were brought into the engine

room. 3 »

_ Ihave said that to succeed, the plaintiff has the burden

of sustaining her charges* by what the law terms a. fair

preponderance of the evidenice, and this is a burden that >

she has with respect to both élaims, seaworthifess -and

‘negligence. What do we mean by “fair preponderance

of the evidence”? It means the greater weight of the

evidence, the quality of the evidence, rather than the number

of witnesses. It means that the testinfony on the part.

of thé party who has the burden of ’ ‘proof is-more per-

suasive and convincing than that opposed to it.

You may say that a fact/is proved-by a fair prepon.

derance of the evidence when all of the ev idence tends .

to persuade you.the witness or witnesses are telling the

truth.. Sometimes, in order to make this definition more

real, J give an illustration whic ‘*h I think will bring home

to you just what is meant by fair preponderance of the

evidence. Assume that you are in your deliberations in

[fol. 49] the juryroom and are reviewing the evidence given .

“by the various witnesses. When ‘an item of evidence appeals _

to you as credible and believable and supports the plaintiff’s

side of the case, you will assume a hypothecary scale be-

fore you and you will put that evidence on the plaintiff's

side of the aa And you do. the same. dee with the —

evidence which appeals to you as supporting the defen-

dant’s side of the case.. And you do this until you have. -

concluded a review of all the evidence. a

If, upon the conclusion of your analysis of all the evi-

- dence, the” plaintiff’s side of the scale is weighted in her

favor, no’ matter how slightly, :then: she has sustained

her burden of proof. it, on the other hand, the scales are -

balanced or-even, then she-has failed to sustain her burden

of proof, and, obviously, if the seale is. weighted on the

defendant's side, again she has failed to sustain her burden.

of proof. - o

The plaintiff, to sustain her borden: of proof ‘that ‘the

ventilating system. was not fit for its intended use and

‘purpose, relies in large measure upon the testimony of

‘Robert Gaines, the toxicologist,.who was called as an_

expert witness. Gaines in substance testified that an ac.

ceptable’ safe concentration of*carbon tetrachloride is LUO |

parts ‘per million; further, that. the chemical can be used:

with safety if there is proper ventilation by exhaust- to

remove the fumes.

He also testified that. in his opinion the average concen.

tration of carbon tetrachloride in a room the size of the.

engine room of the New Jersey was 20,000 parts per-mil-

lion, but that this was: the. maximum which did not take _

into account the ventilating system and its various ad-

juncts; that the true concentration depended upon thie

effectiveness. of the ventilation system in removing thie

fumes; further, that in order to reduce the working drea

to a safe condition, it would be necessary to remove Sb

cubic feet of air per minute.

{fol.50] In answer to a hypothetical sation which set

forth thé various units of the. ventilating system and in

general the conditions prev iling’ in the engine room.

that because of the way the

Gaines gave it as his opinio

‘ventilating units. were loegted, they were inadequate to —

‘reduce the concentration to/the maximum accepRable stand-

‘ard of 100 parts per million. And again, in his opinion,

the ventilating system; with its auxiliary equipment, was *.

not reasonably adequate to remove the fumes for men to

worm | in safety. |

48 : Ae | ne *

The defendant, in resisting, plaintiff’s claim, stresses

that it was not. required to supply the mdst perfect equip.

ment, but only equipment reasonably fit for the use for

which it was intended. To establish that it met its duty,

"the defendant points not only to Doidge’s testimony that

_ the ventilating system in his opinion was entirely ade.

quate for men to work, and that if functioned properly.

but that Halecki himself assisted in setting up. part of the

‘ventilating system; that at no timie did he complain of

its inadequacy or mention the subject, although he knew of

the nature of*carbon tetrachloride. . ae s

The defendant further contends. that the plaintiff was

_ poisoned as a result of a predispasition to carbon tetra.

chloride poisoning. because of his daily consumption of

liquor and beer im stated quantities for some. time pre-

ceding the day he worked in the engine room of the ship:

that such predisposition was an unusual situation whieh

in no way detracts from the. fact that the ventilating

" system, under normal circumstances and for the-avérage

person who might be working there, was reasonably ade-

quate for its intended use. = =)

_ In addition the defendant also called as an expert wit-

ness Dr. Helpern, the toxicologist, or the medical examiner.

He testified in substarice that the consumption of liquor

and beer in the stated quantities predisposed one to carbon

[fol. 51] tetrachloride poisoning and .that an average in-

dividual who did not indulge would likely be free from the

effects of poisuning under the same conditions, ard that in-

his opinion, decedent, by reason of: his cass a did’ have

‘such a predisposition and susceptibility. z

The, defendant also relies upon the testimony of Finke

naur, a ship surveyor-and engineer, who, after making

-tests of the engine room, expressed his opinion. that the-

ventilating system with the auxiliary juipment used on

September 29, 1951,. could effect a complete change of

air in one -minuté; that the addition of supplementary

equipment would improve’ thé efficiency of the ventilatiny

system beyond that status—that is, removing it in one’

minute, causing 4 complete turnover in less than. one auin-

ute. He admitted that in and of itself the ship’s ventilat-

ing system would not be sufficient to remove the carbon

iivachlovide, that it-needed the addition of other ventilat.

ing aids or units, and of course, the defendant’s contention ©

‘js that the combination of the ship's basic ventilating

equipment, as buttressed by the various exhausts, air hoses

and the like, did result in ‘efficient ventilation so as to re-

move the fumes. and to make.the engine room a reasonably

safe place in which to work.

And finally it counters the testimony of Dr. Gaines by.

emphasizing that Doidge was there. and knew’ the actual!

-eonditions, whereas Gaines was conjecturing an gpinion..

In effect it contends that Doidgé, as a practical man, knew

conditions and he was satisfied that the ventilating equip-

ent was reasonably adequate and functioning properly.

/*- If, upon ail the evidence, you find that the plaintiff

has sustained her burden of proof that the ventilating

\syetem was not reasonably fit and adequate to eliminate

e fumes: so as to permit men working in the engine roots:

to\do their jobs with reasonable safety, then she is entitled

~ to recover.. And if you do so find, there would be no need

[fol. 52] to consider plaintiff's alternative theory upon

which she seeks to hold the defendant liable.

On the other hand, if she fails and you find the ventilat-

ing system was adequate. and functioning properly, of

course: she is not entitled to recover on the first claim—

that is, upon the claim of unseaworthiness. However.

plaintiff contends that in any event she is entitled to re-

‘ cover upon the second or alternative theory.. This secénd*

theory involves, as I have already inentioned, different

elements of law. The decedent Halecki as an employee of

the K/& S Electrie Company, of course’ had: to enter the.

’ éngine room to do his job. Under such circumstane es, the

‘law implies that the defendant association, .as the owner

of.the ship on which the work was to be done, invited hin

there for that purpose. The defendant, as the owner of

the -ship,* apart from its duty to suppiy a seaworthy

vessel, then also’ owed .to Halecki and to his fellow. em-

' ployees as such invitees,.the duty to use reasonable care

to see: that the engine room was a reasonably safe place

in which to perform theirvork.

Incidentally, in this instance too: the fact that Halecki

was ar employee of the K & SE lectric Company does not

50 yh |

- vaffect the duty of the defendant to supply, a reasonably

safe place to work to invitees. Again the defendant’s duty

was ‘non-delegable oi it persisted despite ’ concurrent

duty: which Halecki’s employer or the shipyak may have.

owed: to him. Neen: :

' The plaintiff contends that the defendant violated this

duty, that it was negligent. You will note that under the’

‘first claim that of unséaworthiness, it mattered not whethe:

the defendant exercised reasonable care, or whether - it

knew or‘did uot. know the ventilating syst 7

Under that claim it is the fact of \inadé

fitness, if, you do so find, that is crucial. B

ternative claim, which we are now coyside

question ig whether the defendant was\negligent.

fol. 53]. This brings us to the ques\ ion:

_mean by negligence? It is the failure th us@ o

‘reasonable rare under a given set of circujn

. Negligence is dping that which a reasdnably prudent

person would not have done, cr failing td dd that which a

reasonable person would have done unde; all the -cireum-

stances ‘of a igiven situation. The defendant denies that

it was seaihavas and further contends that the decedent’

himself was sblely responsible for events, {and if so, this

would bar any, recovery by the plaintiff, And it further

contends, if not Sotely—responsible, thén Halecki, by his

own conduct, ‘vontributed to his death, {n which event this |

‘would’ go in reduction of damages, as o which I shall fur-

.ther instruct you-when I consider the fuestion \of damages.

With regard to: the second claim—tiat is, of: egligence—

again the miere fact that the decedent/was pbisoned by

carbon tetrathloride and died in egnsequence does not in

_and of itself establish that the defeydant was liable. Again.

_,the shipowner is not an ‘insurer Of the decedent's safety.

Its ‘liability depends upon proof of nfgligence, the burden

of which rests upon the plaintiff. Under either theory,

plaintiff must establish that the décedent’s death Was the

proximate result, either of. the defendant's negligknce or

the alleged unseaworthiness of the veasel.

_~ What do we méan by “proximate cause”? It is a cause

which naturally led to and might have been expected tc™=

' produce the result it did. .Proximate cause is the effective

producing cause of a claimed injury or death.

arbon’ tetrachloride poisd

gligence, the plaintiff, i

the same evidénce as that) | charge, .

of unseaworthitiess. In add tion \she/ claims that ‘the de-\

fendant’s chief officer and otller offic that’ alecki |

ear 54] and Doidge wer goil

| Saturday, September 29th) |

int that thé use of carbon tetrachlonide/ was dangeyous:

that vs atsuming the venti ing \s nate

_ quired \the ship’s Milcers t

time. ne sure that. it was |

properly. while the men’ were \ Working\ © ; | ee

the. exercise of reasonable re , \eitl her

should have known that the auxilia y egui ent,

- they wer in the engine neon, wolild

‘ upon Doidge or ‘the enployer, K &h ue

- The paintiff points to -the. testimon of |

that if thé testimony which was read from

yeaty) rday—that while \the: vessel. was und

\ it \was under ‘the jurisdiction of hiv Shad th

at ent of ‘the defendant, and jf t there w ze

\condi ions aboard the. vessel, it/ hacia, ‘be up |

hein to see that such conditions were correett d.” \\

dér this ¢ireumstance, plaintif{ contends\ that the ile

fyndan hola have known of unsafe / -onditiohs and takei:

i approp iate st ps=to correct them; Whe defend nt, in he.

sisting this claift, again states it, pt ed ‘as any\ r¢asonal) |

_ pr dent erson \would Tas nndep t l\ the eire ua es. || \

+ You ask yourselves, did \the Setendant through its’ offi \ |

\ cera, act as the ordinary and /r ‘asonably pruden pe Tsoi |

\ would hav in di c arging its Al ity to provide a’ ve sonabiy|

xafe place\ for {hi decedent’ ty work int. In n yoann |.

further check}, when, they. knew. that’ Doidge had| added |

‘to the ventilat) g system? // |

\ The defendant, as ‘ou) know, contends the my ‘as

augniented by fhe | shang plow ‘T.-air * Noses and thé like,

y-fot the average man without’ an)

as adequafe certain];

' Prédisposition to poisoning.

(fol, 55] In deciding whether the defendant acted in a

. onably careful manner, you may take into account tli

__ degedent’s prior health and predisposition .to ¢arbon tetra.

-chigride poisoning, if in fact you find he was 8o predisposed.

You\ask yourselves, was it reasonably foreseeable that one

of the men working in the engine réom would, because of

his habits, show predisposition to such poisoning? Should

the dbfendant, in the: exercise of reasonable care, haye

ly because\ one individual is prone to poisoning,

and this \s unusual,’jt would not mean that the defendant

failed to act as a-reasonably prudent person. artes es

‘You as yourselves whether under all the circumstances.

‘the defendant exercised reasonable care to supply an ade-

_ quate ventilating system and to see that it functioned prop-

erly so that the engine‘room was a reasonably safe place

in which to.work. ——” tae es See ng

_.» df you find that the ventilating system, either upon in-

stallafion or\after it commenced to function, was inade-

"quate to withdraw the fumes and resulted in creating an

unsafe: and dangerous condition for mien working there,

and further find that the defendant knew or, in the exer-

cise of reasonable care, should have known this, and failed

‘to cause the condition to be corrected by the contractor

or itself ‘failed to correct the condition, then you have

sufficient upon which to find the defendant negligent., |

_If you find that the defendant was negligent and that

such negligence was the proximate cause or one of the

contributing causes of the death of ‘the deceased, if there

was also concurrent negligence on the part of Halecki’s

employer, the K & S Electric Company, that will‘ not. ab--

solve the defendant from responsibility for its own’ acts

of negligence.- - ;

(fol. 56] T mentioned..a’ moment ago that in deciding

whether the defendant acted in a reasonably careful man-

ner, you may take into account, in deciding that issue, the

ie)

decedent’s prior health and icacilieaialatbai to carbon tetra-

- chloride poisoning. However, if you decide or should find

that the defendant was negligent or that the vessel was

unseaworthy, and this was the proximate cause of Halecki’s

death, then the defendant is liable to respond in damages

even though ‘the. deceased had a predisposition to carbon

tetrachloride poisoning and the defendant was without’

- knowledge of this fact. In other words, once you find,.

upon ‘all the- evidence, that there .was- negligence or un-

seaworthiness, the fact that he had a predisposition would

make no difference because a man’s. health is taken i in w hat-

_ever_state it is. MM -

- You (sic) determination of the i issues in this case in some

measure will depend upon how you appraise the testimony

of experts. Just as laymen frequently disagfee as to mat-

ters within their observation, even without. intendihg to

state untruths, so experts frequently are in disagreement i

their judgments as to matters. within their professional

competence. ‘How do you evaluate the testimony of wit-

53.

nesses, lay. and expert? In your search for the truth you |

use your everyday common sense. As ‘I say to jurors:

so — . when you walk into the door of thefcourtroom

and sit*in the jury box and listen to evidence and then

£0 = the jury room and deliberate, you do it with your

common sense with vou at all times.. You’ don’t enya it

outside the door of the courtroom. °

You have seen the witnesses and have observed their

manner of giving testimony. How did the story impress

vou? Did the witness: appear to be truthful, candid and

fair? Did he appear. forthright? Did his judgment, if he

' is.a professional, wrtness—that is, an expert, witness, on

, professional matters, carry the, stamp’ of ‘Knowledge and

“experience and did his judgment. appear sound? ;

- {fol.57] In other words, in determining the credibility of

witnesses; you apply your every day common sense and ex-

“_perience_ and act precisely as you would in determining @u -

important matter in your own daily lives where you are —

called upon to act upon the basis of whethe? or, not you

are receiving accurate and truthful information.

If upon all the evidence vou find that the plaintiff

has sustaine ‘d her burden of proof, that the ° vessel was un-

9 54 Q \

seaworthy or that. the defendant was negligent, then and

only then do you h the question of damages. Of course,

if she has failed, that would énd the case and you do not

consider the question ~f damages at all. . ;

' Ineidentally, the fact\that 1 charge you on damages does

not mean that the Court entertains any view as to how

you are to decide the casé, That, as I have mentioned ‘a

number of times, is exclusively your function. | 3

There are two separate claims for damage to be con-

sidered. One is under the Death Act of the State of: New

Jersey. I suppose some of you Wonder why it is under the

- State of New Jersey. We apply. New Jersey law because

the decedent was a r¢sident of, New Jersey at the time of

his ‘death. So that: law * applied even though the case is

‘

~ being tried herein-the Federal Court. .

Under thit act, the plaintiff seeks to\recover damages

for the pecuitiary loss which the widow and the three ¢hil.

dren who were dependent upon. Halecki, haye suffered by

‘reason of his death. Under that law, the. widow ‘and

her three children are entitled to recover for the depriva-

__ tion of. the reasonable expectancy of contributions of a

“pecuniary nature, and the probable loss of direct services

- in and about the home. This includes the loss of any ser-

- -vices having a pecuniary value which the deceased might

have rendered to his wife and the three children, had he

lived. You are not to include any award by way of com-

pensation for their grief and sorrow, occasioned by their

_[fol. 58] bereavement, however sympathetic you may fee]

towards them, and obviously. no award of damages under

the circumstances would be sufficient to compensate a family

for the loss of a dear one. pte

In censidering the pecuniary or the monetary loss, you

- consider Halecki’s ‘normal. income and the. amount which:

he contributed in the past for their support. You may take

into account the state of his health, his work habits, and.

. life expectancy, and the likelihood that he would have con-

tinued to work during the period or the greater period of

his life expectancy. You may. consider that his earnings

would not necessarily be constant. The deceased’s pros-

__, pects of advancement or increased earnings may also be

~ > taken into account. — 3

se see

3 55

Halecki was 40 years of age when he died. His widow was

years, and the three children were then respectively

‘14,\11 and 5 years of age. The testimony in the case is that

— in 1950, Halecki earned almost $3400; that in 1951, up to

the Wate of.-his death, he earned $3250. These earnings -—

were-based upon a $2-per hour rate for an electrician, and

it was stipulated the present rate on his job is $2.40 per

hour. I-believe counse] in his summation made a reference

to $2.60. My own recollection is $2.40. ,

Mr. Mahoney: J think 2.60 is carrect.

Mr. Baker: 2.60.

The Court: Then I stand corrected.

Mrs. Halecki testified that Mr. Haltcki turned over his

‘entire pay for the support of the family, that she gave him

~ about seven or eight dollars per week for earfares and

incidentals, that he spent about sixty 6r seventy dollars

per year for his clothing. You also have a right to take

- into account the value of his board and lodging as a member

of. the family, in determining what the net contribution

was that he made to the family. In @my eyent, the plaintiff

- claims that the net amount retained for the support of the

family was approximately $3000 per year.

. [fol. 59] - First you must determine the ‘penseoniies likely

future earnings of the decedent and the contributions which

he would have made to his. wife and three children for

their support had he lived. Once you determine the likely

annual contribution to the wife and dependents, and the

period thereof, the pecuniary loss so sustained neast be -re-

"duced to its present value..

‘also contemplate exhay

This is a matter of computation depending upon the rate

of interest you apply. It is in effect capitalizing at a -rea-

sonable rate of interest that sum which would yield an-

nually the same income or support which the wife and the

dependent children would reasonably ‘haye been expected

to-receive from the decedent. In. other words, you must

ing the fund in full. You don’t:

a fixed annual income, because

figure a capital sum to yi

- the fund \must be exhausted ~ in its entirety at the end of

the period which.you estimate that the widow and depen-

dent children would have received income.

56. oak et Ce j * ae

- To assist yon in this computation, the plaintiff has pro-_

duit the testimony of an actuary. - Parenthetically, 1

_ should add that I granted a motion to strike all his testi.

“mony which related to annuity ratés. based upon- the life.

fa of. the husband “alone, and the only figures which you are

fo consider, if you do decide to consider them, are those ,

‘based upon the joint lives of the KusBahd and. wife. The

a actuary testified that the present value of-an annuity of

* e one dollar, based upon the joint life. expectancy of. the

‘decedent and his’ wife, at 3 Per cent; is. $16. 72, and at 4 per

. > -eent, itis $14.82. i” ;

Simply. ‘by way of example-and please understand that

this is only-by_way-of-example—assume that you find that.

the.amount of ¢ ontribution would have been at the rate of.

$3000 per yeaf. You multiply that*annual sum by the an-

bhity rate, whether 3 or 4 per cent, or such rate as you

believe: ‘might be Considered under present conditions ‘a fair.

rate of return, without. requiring more thane an —

skill in investing. |

_[f61.60} Using the: $3000 annial pancer Sos as ay ex-

“ample and a 3 per cent rate, you would multiply the annual

- amount, annual sum by $16.72, and that would give you a -

total of $41,800. That would represent the present value

of ‘the daniages. Et |

{ ” Again, using. the t etical $3500" sum ind 3 per cent

interest, you would mufiply the $3500 by 16.72,. and that |

would give you $58,520. ° a: |

_ Or, if you decide to use the 4 per cent’ rate, then you.

~ . would multiply, in the instance ‘of $3000, or-$3500, which-

ever you decide. the annual. contribution to be, By $14.82 -

» which would. give you $37, 050, in one wearer: and $51,870

; in the other. --.

. In. other. words, using multiples of: $2500, $3000 and.”

$3500, and a 3 per cent or 4 per.cent: interest rate, based

upon ghe joint expectancy of the decedent and his wife,

there is a range of ‘present value of pecuniary ‘damage,

depending upon the annual contaibution and .the rate of .

__/intere&t you use, of from $37,050 to $58,520. |

These were various examples placed upon the blackboard

- by the> actuary yesterday. However, you are/not bound to -

use any of these figures ory rates. You décidy for your-

selves’ whatever - you determine. to’ be the loss of annual

contribution, and act accordingly.. You compute the dain-.

“ages and you determine its present value, and I am sure

it is clear to you that you do not have to find a precise

dollar amount. You reach a conclusion representing a fair’

amount, applying the standards | have outlined.

_ Finally, there is the second claim for conscious ‘prin and

suffering ‘of the decedent; and here too. you must deter-

mife what amount, if any, is to be awarded for the con-

scious pain from, September 29: to: October 12, 1951, the

date of his death. You have had the testimony as to the:

“nature of this illness during this period. In this. instance,

unlike the claim for the benefit of the dependents, there

is no yardstick really to guide you except ‘your good com-

[fol. 61] mon sense and your judgment. Again, sympathy

must not be substituted for reason and common sense. ‘The

purpose of the law is tq award just and fair compensation.

Your. award must be neither excessive nor inadequate. It

/ must be fair and reasonable. ie

When you have reached a conclusion as to’ the amount

of pecuniary damage, and also, for consqous pain and

suffering, your work is not concluded.. The ‘defendant in

- this case, as 1 mentioned earlier in these. instructions, has:

‘ -rdised the defense of contributory negligence. Contribu-:

‘tory negligence on the part of Halecki, the decedent, has

been raised as an issue. In other words, the defendant °

-elaims that should you find that it was negligent or that

‘its vessel was unseaworthy, then the decedent, by his

awn conduct, contributed in part’ to the events that led to’

his death. If this is so, and the defendant should succeed |

“in sustaining its defense, then the defendant is. entitled

to a-reduction of the damages in each award to the extent

that you find the decedent contribu ‘ed to his own. death.

Halecki was under a duty to exercise reasonable care for

_his own safety, and) a failure to do so Was seutribatory

negligence. ! WA

Simply stated, contributory sition is the doing of

seme . act or an omission ‘to do some act amounting to. a

want of ordinary caye for his own safety. The basi¢ con-

tention here is that/Halecki assisted in setting up the ven-

' tilating system, and if it proved inadeqhate and ineffective

4).

for the purpose for which it v was intended, he was : present,

was aware of conditions, and in some measure was re-_

‘sponsible therefor. If you find, in fact, that the decedent

was contributorily negligent, then you determine to what.

percentage or extent hé was negligent. ‘In other-words, if _

you find te contributed 50 per cent or a greater or lesser

percent, you will deduct that amount from. the damages.

. to be awarded under the two claims to which I have re--

- ferred. :

[fol. 62] - Incidentally, this rule is Gate unlike the rule

that prevails in the State Court, and some of you may have

sat-in-cases in the State Court where the defense of con-

tributory negligence bars a recovery by the plaintiff en-

tirely. This rule is not applied in this type of case. Tt is

called the rule of comparative negligence.

Since the defendant sets up the defense of contributory

negligence, the burden of establishing it is upon the See

. fendatrt, and this it must do by a fair preponderance of

“the evidence. If it sueceeds, it is entitled to a reduction to

the extent of deceglent’s ‘own negligence. And of course, if |

it fails, no reduction isto be made.

In diseussing ‘in summary {&@hiqn the ev idence and the

-. contentions of ‘the parties, | havA of necessity itted:

. substantial portions.of the-testimony offered by both sides.

My failure to touch upon other evidence in the case or- to

-mention all the evidence is no indication that such other

evidence is not important. ‘Nor does the mention of par-

-tieular testimony” ‘in these instructions indicate that it

_ is of greatér—inipertance than that not mentioned. All’ —

eVidence in the case is important and it is your. duty to

review fully all evidence in reaching a conclusion on the. |

issues that you are called upon to jebaldee ix: -purpose in

making reference to the testimony: was to set up in broad

outline-the various contentions of the parties £0 fis to ang

the issues within proper focus.

I have already told you—and I am EaAlD it now—_

if your recollection of the evidence differs from any. refer. °

ence that’'I have made to testimony, you are to rely en-

tirely upon your own recollection, and to have no hesitancy: .

in réjecting such references | have made and which do not

“accord with your own recollection.

Po ; tise 59

I believé I have also mentioned .this during the course

of the trial when I asked questions of witnesses, The Judge

. has the right and indeed a duty to see that facts are clearly

presented, and the purpose was to clarify matters in the -

(fol. 63] case. However, you are not to draw any conclu-

sion that by reason of my iriterrogation of witnesses, I have

any point of view as to that witness’s credibility. or how the

_ease is to be decided. That is your function, and as | said

at the outset of the charge, you ate the exclusive judges

of the facts, and none may invade your province.

Under your oath you are sworn to try this case in accord-

ance with the law and the evidence, and to render a true

verdict accordingly. You should not be motivated by sym-

pathy or by prejudice. You should not be concerned—and

[ am sure you will not be concerned—with who are the

plaintiffs or’ who is the defendant. All stand equal before

the bar of justice; Your duty is to resolve the issues: fairly

and impartially. You cam¢ into the jurybox without any

preconceived views, ideas or opinions concerning the right

‘or wrong of either party; and what you now know about

_it should. have been’ learned only from.the witness, stand

and from the exhibits in the case. Your final determination

-of the facts must be based’ upon the evidence.

Each of. you is entitled to his or her own opinion, but

you are required to exchange views with your fellaw jurors.

That obviously is the parpose of jury deliberation, to re

’

view the evidence and analyze it, discuss it and ‘reacifin, ~~

accord, if you can do so without violence te your own con:

_scientious judgment, as-te-how the case should be decided.

However, if you have a point of view that differs from that

of your fellow jurors, and if upon discussion you. are per-.,

suaded that your point of view is erroneous, you should have

no hesitancy in changing your point’ of view. But you

should do this only if you are conscientiously satisfied tliat

_ the verdict. requested is in aceirdance with your view of’ |

the evidence and the law in. the case. one

To report a verdict, it must be unanimous.

I have prepared a form of special verdict. which I will.

hand to the foreman of, the jurs; and in the event’you find -

_. [fol. 64) for the"plaintiff, it sé¢ts forth, “Please answer the.

’ following.” That isin the event you find for the plaintiff:

__ that. 1 believe in your Honor’s charg

Fas

“1, We find the damages:

“(a) In the claim for . pecuniary ‘loss to the widow and

dépendent children’ to. be in the sum of,” and the amount

is blank. You fill in whatever amount 4t is.

“(b) In the claim. for conscious pain and suffering to

the decedent to be in the sum | of,” and-there is a blank.

Shiould you, during the course of your deliberations,

require any of the exhibits, if you send a note out, we will -

be glad to-send ‘them in to you, I think you should still

remain in the box. There may be matters. counsel may want

- to discuss. Please do ‘not deliberate. Do counsel. want to

' see the Court?

"Mr Mahoney: Your Honor, there are certain matters: T

would like to discuss.

The Court: All right, we 2 will see you inside then.

; (The following discussio: ‘took place in chambers out of

the hearing of the jury.)

The Court: Counsel for the plaintiffs, any exceptions!

Mr. Baker: ‘No exceptions. |

The Court: Counsel for’ the defendant?

Deraspanas Requests TO Cukrae:

' Mr. Mahoney: Your Honor, defendant requested an ap. f

parent inadvertent error be corrected. Defendant requests |

| you stated that thie:

witness*Finkenaur testified that the-ship’s ventilating sys-'

_ tem, with the auxiliary equipment, was capable of chang?

_ ing the air within one minute.. Ope

Mr. Baker: No. ; "ig be

[fol.65}] The Court: .No, I did not say eee pe

Mr. Mahoney: You went on—it indicates that is: ‘wliat

you meant to say. He said this could be improved. by the

use of additional equipment. pp ‘

The Court: No, what.I did say is that the rate of chang- >

ing air would even be improved by the use ba auxiliary

equipment.

' Mr. Mahoney: That's: correct, but I believe your first

statement was as | stated. .

i | , cs 61

The Court: If you think I made a scabies on that, 1 will |

correct it. Just let me find that a moment.

Mr. Baker: My recollection is that that was not so. :

The Court: It is'nothing to discuss. We will find it

immediately. .

(Court searches notes.) Well, I think you are right. I

did refer to the fact that. the. ventilating system, with the

‘equipment, could -effect a change within one. minute. I

meant the ship’s ventilating system, without the auxiliary.

You are right.

_ Mr. Mahoney:' 1 would appreciate ‘if you would make

that change. ate ae i ae e

- The Court: I don’t know how it escaped me...

‘Mr. Mahoney: Your Honor, defendant. further requests,

in accordance ‘with your earlier. informal ruling, that the .

jury be charged that the defendant’s failure to warn—

I am sorry—that the defendant had no obligation to warn

the plaintiff of the dangerous characteristics of the sub-

“stance, in view of the decedent! 8 experience with. the com-

modity. -

The Court: Well, I sustionsd that not only in informal

discussions, but in a statement on the record when I indi-

cated to plaintiff that I would refuse to ins{ruct the jury

that there was any duty to -warn. I think I also indicated

to you I do not see any purpose in instructing the jury on

that: They do not know anything about warning. If you’

press it, I will giye it to them, but-are you not really. com- .

| fol..66 | plicating something? They know nothing about a

. duty to warn concerning the nature of carbon tetrachloride.

Mr. Mahoney: Well, I request that you so charge, your

Honor. | fe

*The Court: I will give it to them. ‘It does not make any

difference. .

Mr. Mahoney: The heteudes further requests——

‘The Court: “WwW ait, let me get that down. Go ahead.

Mr. Mahoney: The defendant further’ requests that it

be emphasized to the jury that instructions on computa-

tion of damages, together- with the form for @ special ver-

dict, be no indication that damages are to. be considered.

The Court: Well; I have already instructed the jury on |

that once and I am not going.to emphasize any one part ;

of the es as against any other.

“ ~

" Exceptions TO THE CHarce

Mr. Malesia -And defendant respectfully excepts. to

_ your Honor’s charge to the effect that the plaintiff was en-

. titled. to a seaworthy vessel, and defendant respectfully _

excepts to your Honor’s charge that contributory negli-. -

gence is not the rule to be applied here, in accordance with

our prior requests-of charge. — ate

_ The Court: I-asked you to give me authority on that to

overcome the Pope and Talbott case. I asked you tp give

me that several days ago. You have not giv oa to me yet,

and the decision will stand. y

Mr. Mahoney: Do you want aathority on the revord!

The Court: No. ~ 3 a

Mr. Baker: May I ask one ‘point for diariticntion, with

spect to the question of damages?. I leave it to your

_ Honor, in your discretion, to determine what should be .

-done. In giving the jury the tables that your Honor indi-

cated the jury has a right to consider in arriving at a

[fol. 67] verdict, those tables only covered the contributions,

the wage contributions. Do you think. for the purpose of ~

clarification, you should indicate that that does not include

any additional amount that they may find he i is entitled to?

The Court: You don’t mean forthe purpose of clarifica-

tion,. you mean for the purpose of emphasis, and I refuse .

todo it. .

Mr. Baker: I mean simply——

The Court: No, I refuse to do that.

Mr. Baker: I think it was for contributions only.

Mr. Mahoney: Your. Honor, for the purpose of the rec-

ord, may I register oe. te certain parts of counsel’ 8

suminationt

The: Court: No, you may definitely not i that at —

this point. Counsel concluded his summation at. 11.45.:

There was a recess of fifteen minutes before the Court:

began its instructions to’ the jury. The Court commenced

its gharge at 12 o’clock. It is exactly 1 o’clock now, and

not a single word has been said up to this moment.

(End of discussion in chambers out of the Nnthee of

the jury and the wr were resumed in open court

as follows) : e

_—

The Court: Members of dhe jury, while I did tell ‘you

several times that if I made a reference°to testimony that _

did not accord, with the record or. your own recollection, of °

course you will disregard it, counsel has called my .atten-

tion to a: statement I made in the charge which I agree

_ with is incorrect, and I don’t know how this clause slipped

- ‘in there. I am going to-correct the statement. It is a, state-

ment with respect to the tesimony (sic) given by Finkenaur,

the ship surveyor. My original statement was that the

defendant also relies upon the testimony of Finkenaur, a —

- ship’s surveyor and engineer who, after making a test of |

the engine room, expressed his opinion that the’ ventilating

' system, with ‘the auxiliary equipment used on September

[ fol. 68] 29, 1951, could affect a complete change of air in-

one minute. — ;

Well, that statement is incorreet in so far as I included.

the reference “with the auxiliary equipment.” His testi-

mony was that the ship’s ventilating system, the permanent os

- ventilating system, could effect.a change of air in one —

minute, and, as a matter of fact, thé next clause would

indicate that that & what I had in mind because he further

testified that if you aided further ventilating equipment

to it, such as was hrought in, that would cause an even

more efficient turnover of air and cause a complete turn-

> over of air in less than one minute. ‘So I am glad to correct

that statentent without relying upon. yen: -to’ correct it for

me. ¢ .

There is just one other item I am going to ‘0 mention. The

evidence in this case establishes that the decedent, as well |

as ‘Doidge and everybody, knew that carbon tetrachloride’

was a dangerous substance. Under this: circumstance, 1

charge you that the defendant was under no duty, to notify

Halecki that it was dangerous, since he already ‘knew it. -

Does that meet your requirement? : |

Mr. Mahoney: Thank you, your Honor.

The Court: - All right. |

my usual rule that you eliminate from, the oath that they

-are to be kept without food and drink. The oath that is -

given is a very ancient one going back—some day we will

-trace how far back it goes; but maybe four or five hundred.

cY :

‘ . .

: . ° a as

wi ‘

64 At a

« ki 3

“years, and generally—you.anay have heard it administered

in other courts, but I am rather strict about it. It is to the

effect that you shall keep the jury without food and drink

until a verdict they do reach. Then-sometimes we allow -

them to have some liquid inside, of only one kind, and even -

‘to do now, because I think you ought to have. your lunch

first and start in a very relaxed way. It is an important . :

_ [fol. 69] case to the plaintiff and it is an important case to

the defendant. “And I think everybody will be much better

off if you have your lunch first and then éome’ back toZ

deliberate. ania ay as | Jomoruge

( Marshals sworn. )'

e —

| oA 10 o’clock p. b. (sic) ihe. jury went to. or and. re-

* tarned to deliberate at 2.10 o’clock p.m.) |

(At 4.07 o’clock p.m. the following took place) =

(Roll call of the jurors.) “S

The Clerk: ‘Madam Forelady, huss you reached a ver-

dict?

The Forelady’: Yes, we did. ese

The Clerk: How do you find? ste Sie

Verpict

‘The icehite .For the plaintif. Do. I: have to read it?

The Court: Yes, read it. :

The Forelady:. Okay. | :

- “Question: In the event you find: for the plainisff, please

answer the following.”

-. ‘Yes, we find the damages i in the: claipy for the pecuniary

‘ loss to the widow and dependent children to be in the sum

of $62,500; in the claim for conscious pain and suffering

to the decedent, to be in the sum of $2500.

. The Clerk: Thank you. ‘Please be seated.» \:

Ladies and gentlemen of the jury, listen to your: Verdict

as it stands recorded in this case now on. trial. You. Say

you find a verdict for the plaintiff as follows: In the claim ~

for spuemagid loss to the widow, Farrah dependent children, .

Seen °

ert

to be in the sum of $62,500, and in the claim for conscious:

. [fol. 70} pain and suffering to the decedent, to be in the

sum of $2, 500; total amount, $65,000, and so say you all?

(Jury nods assent.) :

) The Court: Any motions?

F $ > n

EFENDANTS’ Motioys AFTER Venbsor

AND DENIAL THEREOF

Mr. Mahopey: Your Honor, defendant at this time. makes

a motion to set aside the verdict, makes a motion for judg-

"ment notwithstanding the ‘verdict and in the. alternative,

a motion for a new trial. ys

The. Court: Motions denied. - Pian e

Mr. eer: Respectfully éxcept. Pe e |

- (fol. pt Maer ts 2 3 Ree

—.- +¢ Iw Unrrep Statis iii Court’

_ jSOUTHERN District oF New York

_ Civ. 87-269 ...

—_—

~~ : 4

” Awwa Haxeck1, administratrix ad‘ Prosequendum’ of the -

‘Estate of Water JosepH Hauecki, deceased, and ANNA

Haxeck1, administratrix of the Estate of Water JoserH

Havecki, deceased, ‘Plaintiff,

Unrrep New York AND New Jersey. Sanpy Hook Priors

AssociaTIon, & corporation and Unirep New York Sanpy

. , -@ldox -Prots. Association, a corporation, Defendants.

E | Jupement—January 46, 1957

The above entitled: action having come on for trial be- ~

‘fore Honorable Edward Weinfeld, United States District .

Judge, on December 28, 1956, January 2, 3 and 4, 1957, -

aa a jury having sendered a verdict for the plaintiff, and

VA % ate R .

*- > °

y. a

: ; ° : . ‘

@ > . °

| | Ter ee

66 Bie | ;

‘ - - J

“i, per the defendanis, and thie following written ques-

tions having been submitted to the jury, and having been

‘answered as Set forth therein,

‘In the event you find for the plaintiff please answer

the following: “Yes”

1. We find the damages:

“ (a) In the claim for pecuniary loss. to

-to be in le sum of sect a "$62,500.00 -

* [fol. 72] (b) n the claim’ for constious

- pain and guffering to, the decedent. | .

- to be i _ the sum of . : — $ 2,500.00

Iti is Ordered inl Adjudged that the » plaintiff have judg-

nd that the plaintiff recover of the defendants costs to —

be taxed, and that sh¢ have execution therefor.

Dated, New York, N.. Y., ‘January 16th 1957.

Edward Weinfeld, U. 5S. D. J.

Judgment entered January | 17th 1957. \

/ Herbert A. ‘Charlson, Clerk.

Costa taxed’ in favor of plaintiff in sum of $130. 80..

| Herbert A. Charlson, Clerk.

1/15/57 ©

5 ‘ ; : x . ° D ? : :

- {fol. 73) ’ ve "9

4 Is UnIrep STaTEs Drsrisor Court

| Goorames District or New York

"(Title omitted]

: or Arpeat—Dated January 29, 1957

_ Notice is hereby given that United New ‘York and New

‘Jersey Sandy Hook Pilots Association, et al., defendants

above named hereby appeal to the United States Court ‘of

3 Appeals for the Second Circuit from an order denying

defendants’ motion for a new trial; from an order deny-

ing defendants’ motion for a judgment not withstanding

the verdict and from the verdict: of the jury. and the final .

judgment entered thereon in the above entitled cause on .

‘the ‘17th day of January, 1957.

Dated: New York, New York, January 29, 1957.

Dougherty, Ryan & Malioney, Attorneys for rome

lants,- Office & P. O. Address, 67 Wall Street, New

York 5, New York, WH 4-6490.

[fol. 74] To:. Nathan Baker, Esq., Attorney for ‘Piaintiff,

Office & P. O. Address, 1 Newark Street, Hoboken, New Jer- |

sey, and 401 Broadw ay (Room 2201), aey York nd

[fol. 75) _ [File endorsement omitted] 7 7 act

APPELLER’S APPENDIX to Brier—Filed October 31, 1967

— [fol. 76) Excerpt From Transcript or Testimony

ANNA Haxeckt, the Plaintiff, — first duly sworn, testi- .

tied as follows: ay

Direct. examination.

_ By Mr. ‘Baker’

. Q. Where do you live at the present time?

_ A. 132 Essex Street. ..

"The Court: Where is that? :

The ‘Witness: Jersey City. feck

a Q. Mrs. Halecki, how old are yout

A.’ T am 41. years old now. :

Q. At the time of your husband’s death, that j is, Walte

- Joseph Halecki, Ifow old was he at. the time? eS

A. He was 40 years old.

‘Q. At.that time how many children. did you havet

A. I had three. ‘

Q. When were you marriedt :

A. L was*married January 23, 1937.

Q: You married Walter Halecki, the deceased in this

case? . :

A. That’s mae : : eo.

Q. And you have‘ three chil ren of that marriage?

.'A. That’s right. -

‘Q. What are the names of these Cildves and their ages”

at the time when’ the death took place.

A. I have three children. Ore is*a boy and two are siti.

Q. The boy, what is his name? .

A. The boy’s name is Robert. —

Q. Hoew_old was he at the time?»

A. He was 14 years old.

' [fol:77] Q. How old is he nowt

_ A: He is: ee m,

The next child: ins

It is‘a girl. She is 16 years old. .

What is-her name? =~

Diane. ,

She is now 16? erat ere

wee : Seat) :

At the time—— | 7 fo

She was 11 years old. } an gen Ne,

And:the next child? Se

Carol, 27 >

How old was she at the time?

She was 5 years old.

Do all ‘these children live with you at. the present

cree prerer ee

A. Yes. | | Aiea a tee be

: “, 9 - 5

wr a" ‘ »

. a | . an? °

; : ee . ° :

Q. Did they live with you cat fhe time this happened?

A. Yer

* Q. Did > you” live. ‘with your husband at that time and.

i - the children? ete ae Ree: rey :

The Court: How old were you at ‘the time of the acci-

dent? - petty

The Witness: I was 36 years old:

‘Mr. Baker: -I offer in evidence the appointment of. Mrs.

| Halecki as adiiinistratrix. fm 1 ee

Mr. Mahoney = No objection. i fe he

f + (Received in evidence as Plaintiff's Exhibit t) ape

. Mr. Bakeré I offer in evidence the thrée birth certificates.

of the three children. % :

a Mahoney : No objection.

(Receiv ed in evidence: “as Plaintiff's Exhibit 2. es

Q. What type, of work was your mietand doing before

his-death? ie :

A. Electrician)’

Q. He was an ¢lectriciant

A: Yes. :

Q. Do you know the name Sf the company he worked

for? | | :

A. K&S. "

[fol. 78]. Q. K & S ; Electrica Company? _-

A. Yes. pate ae uses

Cross ees. :

By-Mr. Mahoney: ae Dig ar

A: - Q. Mrs. Halecki, you don't have any direct knowledge of

| your own of your husband’s work on the pilot boat New

Jersey?’ | ea

JA. No.: , ies

Q. Mrs. Halecki, at the present time you have an, action

pending in New Jersey?

At Biker Jon a ‘moment. I on ‘to’ that. I think

70 : Cr tie a

~~, that should - be subject 6 the Court's rating batons the

* question: is_put. .

The Court: ‘Let~“me_see the papers that” fou ‘refer to.

_For the time being I am going-to~sustain, the objection.

This may be independent’ grounds of liability.

Mr. Mahoney: Exception.

The Court: You may offer it for identification.

Q. Mrs. Halecki, I show you these papers—— .

Mr. Baker : Your Honor, I think it is improper to refer .

.\ to it. Your Honor has ruled they should be marked for

- identification and that is what he should do.

The Court: Offer them for identification.

(Marked Defendant’s Exhibit A for identification.)

~The Court: We are interested in only one question :

whether or not thé plaintiff will sustain a fed here

against this defendant.

[fol.79] . Mr. Mahoney; No further questions. .

Mr. Mahoney: I have no further questions. _ ;-

7 - * Beh se BE Neu

cae excused.) : ee ;

Donatp Doémet, called as a witheas on behalf of the

plaintiff, being duly qeers, testified: as follows :

“A,

‘Direet examination. aan

By Mr: ‘Baker : :

Q. Mr. Doidge, what is your present oeeupayjon?

A. Electrician. |. |

Q. How long have you been an electrivian? me

A. About 30 years. . « 3 = ee

Q. In September of 1951 by. es were wa employe ?

¢ * A. By the K & S Electri¢ Company. . — ee

Q. Who is the boss of that company? :

A. Mr. George Kuntz. . ,

Q. Now, what -was. your. job with them at that timé? |

_. What position did you hold?

& 1 ’ ett

- A. I was the shop foreman. | =,

Q. You wete the foreman? ~ ; :

>, ieee:

—~ Q. And how long had you been foreman iatews that

‘date in September 1951? -

A. I would say penn eight years.

-Q. And at the present time are you still working with

the K & S Electrical wer | |

ee ° No, I am not. :

.Q. What is your -work at ‘the present timet Whom do you

work for? — =

A. Well, I am an 5 electrician working for a New York

.. concern, Mason, Nixon & Kennedy.

Q..In the course of your work for the K & cs Electrical

Company did you work on ships or vessela? .

; ee oy)

Q. And how long had aoe Fe been working on different

vessels: before September of 1951?" ~ : a

‘A. I would‘say, about: 12 years all together.

{fol. 80] Q. How long ted you been working with Walter

lecki? “See

_ JA. 1 think it was ardand six years. .

* Q..That was before ‘this September 19511

A. ¥es, sir.

. Q. And during that period of time were-you his boss?

A. Yes, sir. fi eS aes

Q. He worked under you?

“A. That is right. \ :

Q. Now, with reference to the work om-this vessel, was

- it the New Jersey, the name of the vessel? '

o A. ‘That is right. ai

Q.- Where was that vesst! docked? ‘

“A. In Roderniond Shipyards, foot of Henderson then:

\ Jersey Chy.

Q. Do you know when it was docked at this location?

A.. Well, I know it was September’ of 1951. I can’t re-

member dates.

‘ Q. What sas the first date that’ you went aboard this

vessel ?

A. I think it was on a Monday. ea

ao s

. Q. The date that this work was done that we are-con-

cerned with was September 29, 1951. That was a Saturday?

As Yes: .-

_-Q. Are you eet to the Monday before that, Satur-

eee SR iss | :

A. Yes, sir. Bee

*Q, Were you acquainted with a contract with reference

‘to the work to be’ done by. your company .

_ A&A Yes, si

A. Well, it was harided to me by somebody. I “don’t. re-

member exactly who. But it might have been a man from:

Rodermond Industries office or it might have been my own

_boss. I don’t remember. —

-@ Does this appear to. be the specification of kopaite

, which was ‘shown to — lees:

A. Yes, sir, that i is it.

Mr. -Baker: I will offer that in evidence. . ;

_ {fol.81] Mr. Mahoney: I have no. objection to this. dena: |

ment as a list of the repairs, but I object to its characteri-

_ zation as a contract.

Mr. Baker: We‘have asked and served : a subpéena c on

‘ the defense to-produce the contract. Do you have it now!

* Mr. Mahoney: We do not.

Mr.’ Baker: Will it be. produced? :

Mr. Mahoney: This document is: entitled Rodermond

Industries. It is not a document purporting to be between

this defendant and any other party. We have no such

_- documeént,as Mr. Baker holds in his hand. This is a list of

‘repairs represented by Rodermond Industries. .

Mr. Baker: On the account of this defendant, New York

and. New Jersey Pilots Association, 24 State Street.

Mr. Mahoney: This defendant has no such document.

The Court: Don’t discuss it before the jury. . ;

Members of the jury, just as statements made:by counsel

- in their opening are not evidence, these statements are not’

evidence. They really have nothing to-do with the. case.

_. Mr. Baker:. | thought we would save a little time, your

- Honor.

The Court: Is there any objection to it going inf |

Mr. Mahoney: No, your Honor. ;

ere Byers na

: rat Asta

(Marked Plaintiff's Fxhibit 5.)

~ Q With reference to Exhibit 5, particularly what of this,

list of. repairs were you -to work on, you yourself, wiih -

_ Mr. Halecki?:

A. Well, here it is, ‘item No. "2, part ‘and starboard gen-»

erators.

(fol. 82]. Q. Will you read from that item 2 as to the

. ‘work you were to do with Mr. Halecki? . .

A. It says clean and adjust brush riggings and Lethe,

_ spray clean with carbon tetrachloride the armature and

. field winding to remove all traces of dirt and film. Closé

up and prove in’ good,order. _

.. Q.‘And this appears in this document ‘under item No. Ps

2t - )

A. That is right. « isg eS

The Court: Who gave you that document? |

The Witness: As I said before, sir, | don’t remember

who gave it to-me. It might have been my boss or it

might have come in from the boy that makes them up in

Rodermond’s office.‘ I don’t remember which, sir.

Q. And who did you consult with on the vessel with

reference to this-item that you — No. 2, when you

went there on that Monday?

A. Well, in reference to the engine room work, * got

to the chief engineer on the boat.

Q. Did you discuss that item number 2 with the chief

engineer?

A. At some time. I don’t know if ‘it is just Monday.

Q. And that is the chief engineer on the vessel?”

- ie ee Ge

Q. What took place . at that time when you discussed it |

with the chief engineer on the vessel? :

.» A. Well, we knew we. had..to do this cleaning and it is

- taken for granted, at least, we know it has to be done when

_ there is nobody else on ‘board ship. So we just wanted to

* determine when would be the best time to do it.:So-it was

either done at night or on the’ week-ends. So the chief

agreed that would be’ the best for him that it be done on a

Saturday.

14° : ¥ : ae Pe ae =

Q. When 3 you say the chief, ; you mean the chiet engineer

on the ship? - : 3

A, Yes, sir. : ;

{fol.83] Q.-And that was ‘epnad then to have it done

"that coming, Saturday, the 29th of September, 19511 ; .

. ee

___Q. Did you discuss with him at that*time the work to be.

qone with carbon tetrachloride? _ ;

A. Oh; yes.” +. | ;

Q. And what was said by. youand what was said i by hin,

if you can recall that? |

A. Well, it was just a discussion as to when the best

time would be to do it, to do the ‘work. .

Q. Did you know at that time that the carbon tetra-

chloride was dangeroust -

A. Yes, sir.

Q. And you had known it: for some time before that

date? SoC Ulead Pie BS :

<A, That is right.

Q. Did you discuss the danger of the use of this carbon

.tetrachloride with the chief engineer at that time?

A. I don’t think so. We. just take those things | for

_ granted. We knew’ wat it was‘all about. . |

- The Court: ‘That’ is the reason you discussed fixing a

particular time when to do the work? — “i

The Witness: That is right, your Honor.

_ Q. And ‘the time that you picked was the time. when no

one else would be on the Vessel? :

A. That is right.” «

' Q. You diseussed that, with the chief engineer!

A. Yes, sir.

Q. Was it then understood that there would be nobody

_ else on the vessel, other than the men who were. working’

‘A: Yes, sir.. :

Q. Now, did you’ poe this work with anyone pe

aboard that vesgel? .

A. I don’t think so. ; ,

Q. Did you go on board that velba’ on any other. date?

A. Oh, yes, we were working on it all week. ~

. ee

Q. “What sort of work were: ‘you doing on it all week?

fol. 84) A. General repair work, according to the ‘speci- os

fications, the items that had te be "done- ce

Q. And Mr. Halecki worked there with your

_ A. That is right...

Q. And were the members of the ship’s crews and. offi-

cers, were they | aboard the vessel all week?

A. Yes, sir. - : q

What: were they doing aboard the vessel all week? .

_ A. Well, the engine erew were working om the diesel en-———~

gines down below decks. .

* Q. Now what were they nea with them?

: A. They were removing the heads on the diésel engines,

i don’t know in reference. to: what.

- Q. That was the ship’s crew- that was doing it?

A. That is right.

_ Q. And you saw them working there?

A. Oh, yes.

Q. What other work was being done; Lan other, thins: -

were. being done by the ship’s officers or crew from what

you observed during that week?

A. Well, in the engine room that is all they were doing,

working on the diesel engines.

Q. Now, did you make any preparations with reference

to the work to be done before you cam’ ‘there that Satur-°

day? 3 : Re lad |

i ie

When did ‘you start making your preparations?

. Well, on the Friday afternoon.

Friday afternoon? That is September 28, 19511

Yes.

That is the day before you | actually did the work?

— (a

. Who was. present at the time when yen were making

these preparations? :

A. Well, everybody was eis that had been working

there all week... Se 5

~ Q. When you. say everybody——-- pon a

{fol. 85) A. From the Rodermond Seteaivion, the ship's

- crew, the general’ working —

O>o sited

76.

és Q: You mean there. are ‘people who are working for

_ Rodermond Industries, the een people? .

' A. You, sir. '

Q. And there were inembers of the crew doing work « on ii

the vessel?. ; —_~

A. Yes, and my own men.

Q. Which one of your own men) did you hav t Other |

-men besides Mr. Halecki?

and myself. |

Q. Now, in-the time when you were » maki: these prepa.

rations were there any officers on the ship er :

' . A, Well, they were aboard. 3

—Q.. Was ‘the chief-engineer around at the time when you

were making these preparations | for your work that) riday -

afternoon? —

A. He was in the engine room, yes. si

————Q. And he saw what you were doing? ‘He was sight

there?

“AY Well, he was there. I don’t know if he saw me or not,

Q. But you were — right there i in the engine room?)

A. Yes. .

Q. That is the same engine room ears you were making

your preparations?

pe ae ‘

: Donatp Curistie, called as a witness on behalf of the

pigintid, aang duly sworn, testified as follows:

Direct examination. : age

‘ By Mr. Baker:

Q. Mr. Christie, what is your penition? a

A. Personnel manager. | a)

Q. And that is with what company?

_ A. Rodermond Industries. _ ;

Q. Did you, pursuant to'a subpoena. served on “Roder-

(fol. 86] mond Industries, produce some records concern-

ing the repair work to be done on the vessel New Jerséy?

2 a7] Z y c : :

A. Phave them here, sir.

Q. In September 1951?

A. I have them here. Zins |

Q. You have them here? | 7 cee —

A. Yes, sir.

. Have you a specification of repairs with reference

ees Se 5 have.—-— ee : |

. Mr. Baker :. . May I see that, please?

(Witness hands to counsel who examines. )

Q What is the date of this list of repairs!

A. September 24, a. =

.Q. And that is with reference to what Vout

‘ A. New York and-New Jersey Pilots — ee

Boat New Jersey— ee ee

' .Q. And with reference to this list of repairs which you

‘ have produced here—withdraw that question.

.° Was: that list of repairs for this vessel as between’ .

Rodermond Industries and the New York & New Jersey ;

Pilots Association? . ee. ; pt a

A. It is. m\ | )

Mr. Baker: I offér that in evidence.

; (Marked Plaintiff's xhibit 6.) 3

The Court:. What exhibit is that? ~~ Sie

The Clerk: 6. \ i | ae

Q. Is that similar to the same one marked Exhibit P-5?

_ you tell us by comparing them? -

Ye. that is the same.

o Same one? | , .

A. Same one, a duplicate copy, yes. | =e

~-.Q. How, customarily, are these lists of repairs. prepared

and submitted?

A. Well, as far‘as I know, the Pilots Association. ‘sub-

[fol. 87] mits it to the company and the company prices

them and’works accordingly, if the bid is received.

Q. Does the shipyard inform ‘the Pilots Association or

the owners of the vessel!

“, | |

A. As far as I know, no.

- Q. How is that done?

‘The Court: He just, told you. es

_ Mr. Baker: Yes. .

x 2h “They have their repairs.

The Court: In other words, they prepare the list’ it

repairs which they believe are required for the vessel and

submit it to you and you-price each item? :

The Witness: That’s right? | 2 ae

The Court: And that is what this reflects? _ r.

The’ Witness: That’s right..

_ The Court: In other words, you picked up: ‘the repairs

as submitted by them and yqur compan ; Rodermond In- :

dustries, specified the price? ; |

The Witness: Yes. . :

The Gourt:. And they accept it? |

“The Witness: Yes. . .- : are

The Court: And you went ahead with the job? —

The Witness: Did the job. Noe

- Q. :These pencil marks on this Exhibit 6—what are those

- figures?

= ae Those are the: prices. for each item.

Q.I see. And then there is a total) set Baie for the

amount, the total amount? — .

A. I believe that is it, yes. . -

Q. ‘And then subsequently was there a bil 1 submitted ‘by

‘you or Roderman” (sic) Andustries.to the owners of the-

“vessel, New York & New Jersey Pilots Association?

VA. I \believé that is the procedure. x

_ [fol. 88} Q. Have you got the- bill there?:.

A. I don’t believe so.

Q..Is this the bill (submittmg) ?

A. That-is the bill. C.

Q. And that is the: bill which was submitted under date

of December 31, 1951, is that right?

‘A. That’s right.

- Q. And that is submitted by-you ‘to. the New “York &

- New Jersey Pilots Association?

A. Yes. es

\ Mr. Baker: q offer that in evkdenes:. eo face oes \

--\Mr. Mahoney: No objection. «6°, re

_. Mr. Baker: No objection. aA

(Marked Plaintiff's ipxhibit 7. )

Q. With reference’ to any of this work that is listed in

these last-two exhibits—was any of it subcontracted out

‘by the Rodermond Industrie to another company, if you ~

iS .

A. I believe so. \ ,

~ Q. Was the electrical work subcontracted out, as far as

you know? ae

A. Yes. We don’t have any electrical ei’ g

Q. You don’t have electrical workers. So that you sub--

eontratted it? ee Seats ?

_ A. Yes. : ,

Q. And to what company did: -you subcontract itt Can

. you find that out from your records? .

Yael

_ (Witness examines. ),

-A. K & S Electrical Company.

K&S Electrical Company?

A. That I don’t know. That wont be in ithe office.

Mr. Baker: That’s all.

ifok. 9) _ Cross examination. . 7 poe ee ei

By Mr. Mahoney:

Q. ‘Mr. Christie, were you Employed by Roderfaond in

:. See | psa

at Gg. °° epee re .

Q. Do you have any ¥ direct knowledge of this transaction

with the Pilots Association?

A. None at all. | ! ; ;

Q. No knowindge: of ypar own, is that right?

No.: .°.

Q. These various exhibits which you have, identified

A. The copies I ae yeb. Ls

: .

° - ° F

80 a . J .

. -

” > . . .

Mr. naa: Thank you, that’s all.

Mr. Baker: That’s all. We ae 7

By the Court

By the Court:

Q. You were given, as the Rodermond Cox

: given, of course, access to the vessel on which ‘th

’ . “ was to. be done? AS

wee a

bie : ‘

A. Yes. et a YS Se ;

The Court: That’s all:

* * e. oe . ‘ e\ 7 --e)

Doma DowceE resumed. = Tee Xahae \

Direct examination.

"By Mr. Baine isontiumneld

- Q -Before we continue with your questioning from abies!

we left off after the morning recess, this vessel, the New |

- Jersey, was it, docked.on a drydock or was it in ™" water? |

- A. It wasinthe water. . :

[{fol. 90]: Q.- And it was off a pier did you sayt \Whieh

piér was that? ¢

A. It was on the street side, on Henderson Street.

Q. Which water was it in, do you know? :

A. In what i is known as Morris Basin. _ - Pye te et,

Q. That i is Jersey City? 7 , sae et ga

A. Yes, part iof the Hudson River.

Q. And to get on the ship—how did you get on the ship?

: “A. From a gangplank from the street side.

Q. In other words, it was docked against the dock. and

you got on through a gangway?

A. That’s right.

The Court: Mr. Mahoney, i is there any question but what

this vessel ‘was in | navigable waters?

a .

5 anes.

Mr. Mahoney: I think not,-sir..

\ Mr. ‘Baker: All right.

The Court: And you agree that the al maritime

law prevails? . a aoe

Mr..Mahoney : There is no. issue there, sir.

Mr. Baker: Allright. ~ .

-Q. You were telling us about the two air hoses which

you brought,for the vessel and the ‘uses which were made: -

_véssel on the preceding day, namely, a ‘Friday, before

; September 29, 1951? :

' A. Besides the air hoses I took a high compression ‘Shier.

on board.

_. Q. And this blower, I underatan', was a | blower hit

belonged to Rodermond Industrise.

- Al. That’s right. st

. Q. And you erougat it aboard the ‘vessel that ——

Friday? Bs

“A. Yes, sir.

Q. Will you describe. this blower to this Court and the:

jury as best you can. adh

A. It isa blower. It hasa motor on one hand-with a pré-

1 peller that turns over 35,000 rpm, revolutions per minute,

’ {fol. 91] heavy pressure blower, ahd then it is paes like a

funnel, something like a megaphone. _ 2

Q. Is ita portable one, that you carry? .

A: Itisa portable, yes. .

Q. Can you give us the dimensions, \oproximately? e,

\. Well, I would say it is approximately 4 feet long and =

maybe 18 inches in diameter and it is ha heavy. It takes

\ \two men to lift it. ‘ : Sh) to

Q. \And youand who—— _— Bes,

A. And Walter Halecki. por

Q. Brought it aboard the vesse}?_

A. That’sright. . § *

Q. The Friday preceding? -

Ay That’s right.

Q: How is that operated, in whet manner?

A. It was plugged into an electric circuit on board.

Q. Did ~*~ plug it-in that es

“ > 82

“use it.

Q. When you got ready to, use it?

. A. That’s right.

— Q. Did you Phage /it i in position t the e preceding Fridayt ;

A. ‘Yes, I did. :

« “s

< ; j

6 e. be ‘* a s a

ae ‘Well, " we plugged it in when we were. ready to

Q. With reference to its eapacity—did you give us . its

capacity?

A. No. I have no idea of the capacity of it, sir, ee

Q. The position in which you placed it—how high was. it

above the engine room floor? |

. A, I would say about 7 7 to 8 feet. I didn’t measure it.

vo Phat i is just a guess.

‘ Q. Did you-say you tied seneithite! to the rail?

* A. I tied the blower tothe rail -__ . r

2. ‘And how did you dothat? « - :

_ A. Just with rope around*the, handrail, aronnd the top

of the engine room. . ey

Q. Could you give us the dimensions of that engine rodent

A. I never measured it but I would say approximately

- 40 feet by 30 feet, maybe—40 feet tong; fore and aft, 30 feet

wide,. approximately. :

[fol.92] Q. And how high would you say that engine room

was fronrfloor to ceiling ?. a

"A. From the lower engine room? ;

Q: Well, that engine room that i is involved here.

A: Yes?:. -

Q. From the floor to the ceiling, Seer high i is it?

‘A. E would say approximately 18feet.

Q. So. that the position in which you placed this’ blower;

_ as you described it, was 7 or 8 féet above. the-floor. It

_- would then be, would you. Bay, about 10 feet below the

. ceiling?

~ A ‘That’s right. en

Q. With reference to the engine rpom that we are dis-

cussing—is that. what is known as a — engine room?

A.: Yes, sir. |

-Q. ‘And with reference to that engine room, what was the

ventilation that was part of the ship? .

. A. Well, they had two electric blowers, port, and star-

. ‘board. They were both blowers for the engine room.

> . ‘ ‘ , - ea . Ve

kas aR

Q. And where were those blowers located with réference . Poe

to the part of the engine where they were located? gc

A. They had ducts, a series of ducts running around the.

enginé room—around the rails and underneath the cat-

‘walks. (.s/° >: caer. Se, ie 5 alae 3

‘"Q. And where would the exit or the.outside portion he |

duets be, in what part of the vessel? : a

A. Well, they went all the way through the deckhead to/

* - Q, I mean, where were they, in the ceilings or in the

walls or in the floor? Sra , eras

The Gourt: He just described where they. were, didn't

yout - . Pos: es PFs ake

” The Witness: Well, I don’t know whether-he means the

fresh air coming in or the outiets from the duct. . E "5

- °Q..The outlets, that’s the, word I mean, the outlets.

A: The outlets from the duct? Well, as I say, on.the

- {fol: 93] lower engine room, on. the ceiling, underneath the -

catwalks, over the diesel engines. es age ease ee Ve

Q. So were they all in the ceilings, all the outlets?

A. Yes, sir. There. might have been some in the ‘upper :

engine room. I don’t know for sure. — ie ae

_is involved here where the cleaning of the generators would

A. That’s right, ~ Pde PUPA eon Be

Q. Se that they were all in the ceilings, thése outlets? .

A. Yes, sir. , bhi c Sg

. Q.. And this ventilating ‘system which was /part of the

‘vessel—did that exhaust the air’ or did that put air into

the engine? > seus : oe Can

_-A: I think it put air into the engine. - : neat

Q. Was there anything else. in that room that you could

describe to us further? You have told us about the duct

- system with the ventilation. What other -ventilations were

before you started setting up your work? —— |

A. Well, theré were a couple of oscillating fans around

a strategic location for the crew.” ~ vs

‘Q. Were any of. those fans in use at the time you were.

doing your'work?. Re Big

-. .

Z . : ‘ y

° E Py ” ‘

= : . se .

- é f

ea co =

e 4 ‘

Q.. I am talking about this particular engine room that

eee

A.’ Well, I ile one and: put it on the jm inaidlts¢

where we e-were working,’ at the. generator, one —

Q. And will you describe this fan to us, in size. ers

ow =A. Itis just.like a regular house fan, I would say it wa:

* g 12-inch blade.. It:might have been’ 14.

Q. And what did, that fan do while you.were working?. :

A. Well; it. kept blowing: A’s-you_were working it kep

blowing the fumes of the carbon tet away from you- —_—

you were spraying.

Bo. ® rs ° * * ee

[fol. 94) Q. Justa regular doort- :

A. Yes, a little narrower than a house door.

Q. What else did that'room. have, this lower engine room

if there’ was anything else in reference to its: a

BS, A. Nothing thatI can recall. | a

: Q. That is all you remember? : Fe

A. Yea. “> .

Q. We have a number of photographs here. I am. going

" to ask you whether or not—well, first.of all, does that indi

cate the vessel,’the New J de the one that you did C ceie

work on? igs

A. That is it. .

Mr. Baker : I will ask that it be marked i in evidence.

Mr. Mahoney: No objection. |

(Received i in evidence as Plaintiff's Exhibit 8.).

_ Q. Looking at these other photographs, could you selec

one of these photographs so that we could ‘point out to thi:

Court and jury to ‘show us just where you tied onto thi

lower end, as you described—you tied it onto a rail anc

placed it in that engine room? .

A.. This is it right here (indicating). FLOaE COCA AS es

Q. This one here? a | s

__ A. Yes, sir. — = bet

Q. Does this uihesonih indicate the vessel, the Ne ev

Jersey, the engine room of the vessel on which you wert

doing the work? Is that a true representation: of the vesse

as it existed at that time? » \

A. That is right. ; Cee sakes

\ . ‘ : } fe

Mr, Baker: I offer it in evidence. —

(Plaintiff's Exhibit 9 received in evidence.)

Mr. Baker: That is a picture of the engine room.

_ The Witness: The access ladder in the engine room.

(fol. 95].. The Court: I think you ought to put an arrow

here showing where itis going.

Mr. Baker: I will... ° \ 7 :

G. Will you put an arrow and show us where the steps

are and where they go down. tp:

_A. Yes, this is the stairwell, the ladder. — :

‘The Court: You can’t see the steps of the ladder?

~ The-Witness: No, just the hand rails at the top of the .

iadder. Sei an at i. Agel Sera

= The Court: Put:an arrow indicating there are steps going

down and those steps lead to what you term the. lower

i engine room? Istbatrightt )

| The Witness: Yes, sir. tee | |

Q. This is an arrow which points to the steps going down.

@ And where was the railing that you placed this blower?

“A. It was right in here, in this corner. ve oe

a The Court: Right in the corner. Would you put an arrow

Al on the railing where you tied on this blower? 3

a . The Witness: It is right here, and then from here also.

. -Q. So you put two arrows to the two parts of the railing —

where you tied this on? 7 ae -°

‘A. Right in-this circle here. ee

The Court: Would you stand up and demonstrate to the.

jury and pass the photograph along to the jury. — ee

First of all, what is:in this photograph which is marked "

}- Exhibit 91 What is this plate here? es 7

[fol.96] The Witness: This: i

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.