Maupin v. Erie Railroad

Second Circuit

Maupin v. Erie Railroad

245 F.2d 461

CourtCourt of Appeals for the Second Circuit

DecidedMay 29, 1957

DocketNo. 348, Docket 24186

StatusPublished

Cited by1 cases

This text of 245 F.2d 461 (Maupin v. Erie Railroad) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maupin v. Erie Railroad, 245 F.2d 461 (2d Cir. 1957).

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Opinion

PER CURIAM.

Concededly, the appellant could have walked back to his post at the stern along the port side of the deck had he chosen to do so. He did not because it had become wet. Though he knew the moored tanker was there, he elected to walk along the side nearest to it while the tug was drifting toward it. He was accustomed to doing a deckhand’s work in such close quarters and was bound to act as a prudent deckhand would in the same circumstances. Whether he did was a question to be determined by the jury. Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668. That question was submitted to the jury in a charge to which appellant took no exception. Without that, no failure to charge as requested was assignable as error. Moore v. Waring, 2 Cir., 200 F. 2d 491. Moreover, it was a fair and adequate submission of the issues.

Judgment affirmed.

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PER CURIAM.

Concededly, the appellant could have walked back to his post at the stern along the port side of the deck had he chosen to do so. He did not because it had become wet. Though he knew the moored tanker was there, he elected to walk along the side nearest to it while the tug was drifting toward it. He was accustomed to doing a deckhand’s work in such close quarters and was bound to act as a prudent deckhand would in the same circumstances. Whether he did was a question to be determined by the jury. Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668. That question was submitted to the jury in a charge to which appellant took no exception. Without that, no failure to charge as requested was assignable as error. Moore v. Waring, 2 Cir., 200 F. 2d 491. Moreover, it was a fair and adequate submission of the issues.

Judgment affirmed.

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