Wanders v. Lykes Bros. S. S. Co.

153 F.2d 942

• Court: Court of Appeals for the Second Circuit
• Decided: February 25, 1946
• Docket: No. 189
• Status: Published

Opinion

PER CURIAM.

So far as concerns the action for; indemnity, the exceptions are frivolous. After verdict we must assume that the plaintiff never asked for a new knife, but chose to use his own. How that could charge the ship we cannot understand. The same applies to the court’s remark about assuming any risk involved in his continued use of the knife: the question was not of such an assumption’s excusing any fault of the ship, but whether the ship was at fault at all, if the plaintiff did not ask for a substitute; as plainly it was not. The motion that the plaintiff was entitled to a directed verdict in his favor, because the jury was bound to accept his story, deserves no discussion. The plaintiff had his day in court before a jury which did not believe him, and that ends it.

So far as concerns the cause of action for maintenance and cure, it does not appear that, when the plaintiff went to the hospital between September 3rd and October 9th, he went for any treatment of his hand. True, an x-ray picture of it was then taken, but that was not treatment, but a precaution.

Judgment affirmed.