Opinion
No. 189.
February 25, 1946.
Appeal from the District Court of the United States for the Southern District of New York.
Action under the Jones Act, 46 U.S.C.A. § 688, by John J Manders, seaman, against Lykes Brothers Steamship Company, Inc., and for maintenance and cure under the maritime law. From a judgment in favor of defendant, entered upon the verdict of a jury, plaintiff appeals.
Affirmed.
Jacob Rassner, of New York City, for appellant.
Arthur B. Boal and Tompkins, Boal Tompkins, all of New York City, for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
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.