# Transcript of Record — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1959 - **Citation:** 358 U.S. 613 ## 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. fi 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 ~ 4 oe 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 . 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- ~~ 4 ‘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: \ | 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. * © ® .* ee: a, a e- a | 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 @ jee ? a | ' * “e O55, * * * . & 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 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? 2 A or * [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« 2 —_—- -— oe _ 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 — « j -$ \ .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 | 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.. « as ‘\ \ 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 4 & os ‘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. D 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 . rs 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 s 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. 4 — i f “= ee eras 6 r echo ma ier 25 : ; : / 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 e 26 : 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. ot —, : . 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 4 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. ° 28 ‘[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. ay _. 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 TS s, 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 4 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 a 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 0 8d 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. \ x — 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. 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 id e 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 ae « | - 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 a 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) ik = . . =, 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 38 * 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, ~, é ae 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: : t 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. | : / of 2 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 . . [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. 1, 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. | a 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 | . 49 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 z- 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- M] 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 2 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- r a 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). 58 Se 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: » 7 __ 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. 3 “ ~ 62 " 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 i ~ ° _— g 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. | I tell you what we are ‘going to do. Risen, you follow © 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 - then sometimes we send them out for food, as we are about © ‘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, . a y 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 Po 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 ... —_— id ~~ : 4 - 65 ” 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. é 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 the © widow and dependent children 3 -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- ment -against the defendants in the total sum of $65,000.00 © 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 a. [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 tv 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? 6 & 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 Q. On bode Where were you shown this contract? © 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 : 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? -——-A. Oh, pet Sane Wate gernple © of others besides Haleck 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? 77 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 7) this vessel for that period? © stn ee 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! ps “, | | 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 s \ 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 2, _ (Witness examines. ), -A. K & S Electrical Company. Q. Do you know if you have a written contract with the © K&S Electrical Company? A. That I don’t know. That wont be in ithe office. Mr. Baker: That’s all. ee 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 were all prépared by . Rodermond, » were they not? © : A. The copies I ae yeb. Ls : . ° - ° F a 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 Ci [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A1. Public record. Not legal advice.