FERGUSON v. MOORE-McCORMACK LINES, INC.
No. 59.
Argued December 10, 1956.
Decided February 25, 1957.
George J. Engelman argued the cause and filed a brief for petitioner.
William A. Wilson argued the cause for respondent. With him on the brief were Wilbur E. Dow, Jr. and Frederick Fish.
Mr. Justice Douglas
announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Clark and Mr. Justice Brennan join.
Petitioner was injured in 1950 while serving as a second baker on respondent’s passenger ship Brazil. Among his duties, he was required to fill orders of the ship’s waiters for ice cream. On the day of the accident, he had received an order from a ship’s waiter for 12 portions of ice cream. When he got half way down in the two-and-one-half-gallon ice-cream container from which he was filling these orders, the ice cream was so hard that it could not be removed with the hemispherical scoop with which he had been furnished. Petitioner undertook to remove the ice cream with a sharp butcher knife kept nearby, grasping the handle and chipping at the hard ice cream. The knife struck a spot in the ice cream which was so hard that his hand slipped down onto the blade of the knife, resulting in the loss of two fingers of his right hand.
Petitioner brought this suit under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to recover for his injuries, which were alleged to be the result of respondent’s negligence. At the close of petitioner’s case, respondent’s motion for a directed verdict was denied. Respondent offered no evidence. After the jury returned a verdict of $17,500 for the petitioner, respondent moved to set aside the verdict. This motion was also denied and judgment entered for the petitioner in accordance with the jury verdict. The Court of Appeals reversed, holding that it was “not within the realm of reasonable foreseeability” that petitioner would use the knife to chip the frozen ice cream. 228 F. 2d 891, 892. We granted certiorari. 351 U. S. 936.
We conclude that there was sufficient evidence to take to the jury the question whether respondent was negligent in failing to furnish petitioner with an adequate tool with which to perform his task.
Petitioner testified that the hard ice cream could have been loosened safely with an ice chipper. He had used such an instrument for that purpose on other ships. He was not, however, furnished such an instrument. There was evidence that the scoop with which he had been furnished was totally inadequate to remove ice cream of the consistency of that which he had to serve. And, there was evidence that its extremely hard consistency was produced by the failure of another member of the crew to transfer it from the deep freeze to a tempering chest in sufficient time to allow all of it to become disposable by means of the scoop when the time came for it to be served. There was no showing that any device was close at hand which would have safely performed the task. Finally, there was evidence that petitioner had been instructed to give the waiters prompt service.
Respondent urges that it was not reasonably foreseeable that petitioner would utilize the knife to loosen the ice cream. But the jury, which plays a pre-eminent role in these Jones Act cases (Jacob v. New York City, 315 U. S. 752; Schulz v. Pennsylvania R. Co., 350 U. S. 523), could conclude that petitioner had been furnished no safe tool to perform his task. It was not necessary that respondent be in a position to foresee the exact chain of circumstances which actually led to the accident. The jury was instructed that it might consider whether respondent could have anticipated that a knife would be used to get out the ice cream. On this record, fair-minded men could conclude that respondent should have foreseen that petitioner might be tempted to use a knife to perform his task with dispatch, since no adequate implement was furnished him. See Schulz v. Pennsylvania R. Co., 350 U. S. 523, 526. Since the standard of liability under the Jones Act is that established by Congress under the Federal Employers’ Liability Act, what we said in Rogers v. Missouri Pacific R. Co., ante, p. 500, decided this day, is relevant here:
“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”
Because the jury could have so concluded, the Court of Appeals erred in holding that respondent’s motion for a directed verdict should have been granted. “Courts should not assume that in determining these questions of negligence juries will fall short of a fair performance of their constitutional function.” Wilkerson v. McCarthy, 336 U. S. 53, 62.
Reversed.
MR. Justice Burton concurs in the result.
Mr. Justice Reed would affirm the judgment of the Court of Appeals.
Mr. Justice Black took no part in the consideration or decision of this case.
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