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District Court of Appeal, First District, Division 2, California.


Civ. 13800.

Decided: November 03, 1950

Hoge, Pelton & Gunther, Leo V. Killion, San Francisco, for appellants. Gladstein, Andersen, Resner & Sawyer, Herbert Resner, San Francisco, for respondents.

This is an appeal by defendant Tide Water Associated Oil Company, Inc., from a judgment on a general verdict awarding plaintiff Pearson $10,447 damages for injuries incurred on navigable waters while employed as a pumpman aboard a tanker, The Frank G. Drum, operated by defendant.

The complaint, entitled ‘For Damages, Maintenance and Cure (under the Jones Act)’ alleged in substance that on June 25, 1946, plaintiff was ordered by the engineer of the tanker to remove certain Alemite fittings for the purpose of greasing, that said fittings ‘were in an unseaworthy, unsafe and dangerous condition’ in that they had been painted over and were frozen and could not be easily loosened for the purpose of greasing and according to plaintiff's information and belief also ‘unseaworthy’ in that they had crystallized because of disuse and being painted over and exposed to the weather; that defendant negligently ordered plaintiff to strike said fittings with a hammer or other tool for the purpose of loosening same, negligently failed to provide plaintiff with goggles or glasses and with safe, proper and sufficient tools with which to loosen and remove said fittings; that defendant knew or should have known of the ‘unseaworthy condition’ of said fittings and that therefore the work should have been done at a ship repair yard with tools and machinery safe and sufficient for the purpose; ‘that as a direct and proximate result to the unseaworthiness of said vessel and her gear, appliances and appurtenances and the negligence and carelessness of defendants' when plaintiff struck one of said fittings with the hammer or tool which he was using, a chip broke off said fitting and struck plaintiff in his left eye causing the loss of sight of said left eye to plaintiff's general damage in the amount of $35,000; that defendant negligently failed to provide plaintiff with proper medical care within a reasonable time after said injury, thereby causing plaintiff severe suffering and further physical injury and disability and loss of any chance of saving the sight of his eye by prompt care to plaintiff's further damage in the amount of $10,000. Moreover plaintiff prayed for maintenance money, wages and cure. It is expressly alleged ‘That plaintiff brings and maintains this action under the provisions of section 33 of the Act of June 5, 1920, C. 250, 41 Stat. 1007, commonly known as the Jones Act [46 U.S.C.A. § 688].’

The appeal is based on insufficiency of the evidence to support the verdict and error in instruction and admission of evidence. A preliminary question amply discussed by the parties is whether on the basis of the above complaint plaintiff can only recover under the provisions of the Jones Act or also under the general maritime law because of unseaworthiness of the vessel or its appurtenances.

According to the general maritime law a seaman injured in the service of the ship has always, except in case of wilful misconduct on the seaman's part, a right to maintenance and cure including wages, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 487, 47 L.Ed. 760; Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 934, 87 L.Ed. 1107, and moreover if his injury is caused by unseaworthiness of the vessel or its appurtenant appliances and equipment a right to indemnity (compensatory damages) for his injury regardless of the owner's fault. The Osceola, supra; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 457–458, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 875–877, 90 L.Ed. 1099. Under the general maritime law there is, however, because of the fellow servant rule, no liability of the owner for injury caused to a seaman by the sole negligence of a ship's officer or member of the crew. The Osceola, supra; Pacific S. S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 76, 73 L.Ed. 220; O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 491, 87 L.Ed. 596; Mahnich v. Southern S. S. Co., supra. By the Jones Act, 46 U.S.C.A. § 688, a right of action against the owner for injuries caused by negligence either of the owner himself or of the master or members of the crew was made available to seamen; by proving for the applicability of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51–60, the Jones Act eliminated the follow servant rule but established the requirement of negligence as basis of the new action. De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065; Jamison v. Encarnacion, 281 U.S. 653, 50 S.Ct. 440, 442, 74 L.Ed. 1082; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 639, 58 L.Ed. 1062; Adams v. American President Lines, 23 Cal.2d 681–684, 146 P.2d 1. An action in personam for any of the three remedies thus available to an injured seaman need not be brought in an admiralty court exclusively but may under suitable circumstances be brought on the law side of a federal court or in a state court. The saving to suitors clause, 28 U.S.C.A. § 1333(1), formerly § 41(3); Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 249–250, 87 L.Ed. 239; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 874, 90 L.Ed. 1099. However, the common law court taking cognizance of such a case must apply to principles of admiralty law. Carlisle Packing Co. v. Sandanger, supra; Garrett v. Morre-McCormack Co., supra; Intagliata v. Shipowners & Mer. Towboat Co., 26 Cal.2d 365, 371–372, 159 P.2d 1. It is undisputed that the action for maintenance and cure and the one under the Jones Act are cumulative and can be brought combined. Garrett v. Moore-McCormack Co., supra; Occidental Ind. Co. v. Industrial Acc. Comm., 24 Cal.2d 310, 312, 149 P.2d 841.

On the question whether the remedy based on unseaworthiness under the general maritime law and the one under the Jones Act are inconsistent, and whether the injured seaman must elect between the two there has for some time been a split in the authorities. In Skolar v. Lehigh Valley R. Co., 60 F.2d 893, 894 and McGhee v. United States, 165 F.2d 287, 290, the Circuit Court of Appeals for the Second Circuit expressed the opinion that the seaman could not present both bases for recovery in the same suit and at any rate might not go to trial on both causes of action simultaneously, this because of the words ‘at his election’ contained in the Jones Act, and of certain dicta in Supreme Court decisions which seemed to point in that direction. As late as February of this year the same position was taken by the United States District Court, S. D. California, C. D., in Reed v. The Arkansas, 88 F.Supp. 993. However, the Circuit Court of Appeals for the Third Circuit adopted the contrary view in Branic v. Wheeling Steel Corporation, 152 F.2d 887, 890; German v. Carnegie-Illinois Steel Corporation, 156 F.2d 977; and McCarthy v. American Eastern Corporation, 175 F.2d 724, followed by some recent decisions of lower courts; Erickson v. Shamrock Towing Co., D.C., 81 F.Supp. 850; Platt v. Chesapeake & O. Ry. Co., 82 F.Supp. 968; Borgman v. Sword Line, Sup., 81 N.Y.S.2d 445. The reasoning given for this view in the McCarthy and Platt cases was based on Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, which held that an action for damages of an injured seaman under the general maritime law and under the Jones Act were one and indivisible and that a prior judgment in admiralty under the general maritime law, denying damages over and above maintenance and cure was res judicata and barred recovery in the later action at common law under the Jones Act which could have been asserted in the same action. Moreover the circuit court pointed out the great disadvantage at which the injured seaman would be if he was forced to decide in advance of judicial determination which of the two possible bases of his case was better grounded in law and in fact under peril of being forever precluded from asserting the other ground. The reasoning of the McCarthy case has concededly convinced the Circuit Court for the Second Circuit, which in Balado v. Lykes Bros. S. S. Co. Inc., 179 F.2d 943, 945, decided this year, stated that in accordance with the view expressed in the McCarthy case it was of opinion that in the future there will be no necessity for an election of remedy and that election will only be required between a trial by jury and a suit in admiralty. We must accept this as the law, where at this time it represents the overwhelming weight of authority.

The fact that the complaint alleged that it was brought under the Jones Act does not prevent recovery on the ground of unseaworthiness under the general maritime law if the complaint contains sufficient facts supporting such recovery and defendant is not prejudiced. In admiralty the courts decide cases on equitable principles disregarding technicalities, Davis v. Adams, 9 Cir., 102 F. 520, 523, et seq.; 2 Benedict on Admiralty, 6th Ed. § 223, and award any relief which the law warrants under all the facts pleaded, The Gazelle, 128 U.S. 474, 9 S.Ct. 139, 142, 32 L.Ed. 496; Davis v. Adams, supra; Smith, Kirkpatrick & Co. v. Colombian S. S. Co., 5 Cir., 88 F.2d 392, 395, irrespective of the theory of law on which the action purports to be based or the name given to it. Davis v. Adams, supra; Rainey v. New York & P. S. S. Co., 9 Cir., 216 F. 449, 452; Bernstein v. Morse, D. C., 261 F. 435, 436; The Leonie O. Louise, D. C., 292 F. 763; The Montezuma, 2 Cir., 19 F.2d 355; Delpy v. Crowley Launch & Tugboat Co., 9 Cor., 99 F.2d 36; The S. S. Nea Hellis, 2 Cir., 116 F.2d 803, 805. In view of that rule the complaint, stated in substance earlier in this opinion, contains sufficient substantive facts as to unseaworthiness and causation by it on which to base a recovery under the general maritime law.

Appellant contends that because of the designation of the complaint as one under the Jones Act it was prejudiced because, misled by it, appellant refrained from removing of diversity of citizenship, court because of diversity of citizenship, a removal prohibitd by the Employers' Liability Act, 45 U.S.C.A. § 56, incorporated by reference in the Jones Act. However, the fact that the complaint also states another ground for recovery in addition to one under the Jones Act against the same defendant does not affect the nonremovable nature of the case. Moltke v. Intercontinental Shipping Corporation, D. C., 86 F.Supp. 662, 663; Beckwith v. American President Lines, D. C., 68 F.Supp. 353; Ullrich v. New York, N. H. & H. R. Co., D.C., 193 F. 768, 771–772. This is the more obvious here because the actions in personam for damages under the Jones Act and under the general maritime law (unseaworthiness) are indivisible. Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, supra. Appellant does not assert any other prejudice from the widening of the remedy and no prejudice seems probable as the recovery remains based on exactly the same facts.

Appellant's contention that the evidence is insufficient to support the verdict cannot be sustained. The often strongly conflicting testimony contained substantial evidence to the following effect:

In June, 1946, when The Frank G. Drum was at sea, plaintiff, a pumpman and experienced mechanic, was ordered by the chief engineer to service the Alemite fittings on the deck machinery, to replace those that needed replacing and to grease. The fittings were painted over, frozen stiff, and no grease could pass through most of them; some were broken off. The ship had been in the shipyard for reconditioning in the first months of 1946 when it had been returned to defendant after having been leased to the navy and having served in the Pacific, but defendant did not have the fittings replaced in the shipyard although there were facilities to do it. When a ship is returned by the navy to private operators the government pays for putting it back in first class condition.

In servicing the fittings plaintiff on June 25th came to one (on a rolling chock) broken off in such a way that only a very small and rounded part remained, tightly frozen in the chock, on which part no purchase with a wrench could be had, not even with a pipe wrench, which was on the ship but which plaintiff did not have with him. He therefore tried to build up the remnant with a drift and hammer so that a wrench could be used on it and the pounding would loosen up the threads. When during those operations he hit it on top with a hammer a piece broke off and hit his left eye.

The proper instrument for getting the broken fitting out when no wrench could be put on it was a special gadget called an easy-out or a small handdrill. Neither was available on the ship. There were electric drills, but, according to some testimony, they could not, because of danger of sparks, be used on the deck, so long as the tanker had not been made gas free. In the absence of an easy-out or small handdrill the tapping with a hammer was a proper thing to do. Several weeks after the accident, the chief engineer, according to his testimony, removed the broken fitting with a six inch pipe wrench, but this was after plaintiff had built it up and there was evidence that the piece removed was not in the same condition in which plaintiff left it but had been worked on since with a sharp instrument.

A few weeks before the accident plaintiff had looked for goggles in the engineering department (pump and engine rooms) to which he belonged and had found none except one pair on the grinder which may never be removed. He had also asked the bos'n and a wiper (not the right persons for the purpose) for goggles and had not received any. Another witness, belonging to the deck department, who could not get appliances directly from the engineering department, had asked the first mate, his superior, for goggles and had received the answer that they did not have them and the witness had not got them. However, the chief engineer testified that in the engineering department there were several pairs of goggles available for the asking and that if plaintiff did not know where they were he could have asked.

When the accident happened at 4 P.M. on June 25th plaintiff was nearly blinded by the injury to his left eye and the watering of both eyes. With some delay either unnecessary or caused by the tying up of the ship in Estero Bay, California, he was permitted to go ashore to see a doctor. The port captain of Estero Bay took him to one in San Luis Obispo and brought him back to the ship the same evening. Nobody from the ship did anything to find out whether, and if so what, further treatment was needed. The doctor had only temporarily alleviated the pain, made a superficial inspection and covered the eye. The ship left Estero Bay that night and arrived in El Segundo, California, on the 26th in the evening. The Captain refused to put plaintiff ashore before the next morning after the crew had had breakfast (after 9 o'clock) although plaintiff was suffering much pain and asked to go to a hospital. On the morning of the 27th he was paid and brought by car in front of the Public Health Office at San Pedro, where he was left and nobody from the ship took any further care of him. At the Public Health Office he could not be treated; he had to go by train to a hospital in Pasadena for treatment and remained there until July 13th. After that he was treated partly as an out patient in the Marine Hospital in San Francisco where he had to undergo an operation to remove the injured lens of his left eye. Although his left eye remained oversensitive to light and he cannot use it together with the right eye because of the difference of the image produced in the eyes, he was able to resume his profession completely since December 8, 1946. There is no evidence that the delay in or inadequancy of treatment caused any other harm than increased pain and suffering during the first days.

There is no evidence supporting plaintiff's contention that he was ordered to strike the fitting with a hammer. Much of the evidence stated was disputed by other testimony. Under these circumstances it was for the jury to find the truth with respect to the disputed facts and to decide whether any of them constituted actionable negligence or breach of the absolute duty to provide a seaworthy ship and safe appurtenances and appliances. As to disputed questions of fact the verdict of the jury is controlling also when a question in the field of admiralty is submitted to it, Gardiner v. New York & Porto Rico S. S. Co., 2 Cir., 146 F.2d 420, 421; see also Guay v. American President Lines, 81 Cal.App.2d 495, 508, 184 P.2d 539, and even if the appellant should be entitled to a trial de novo on appeal of a judgment on a verdict in such a case, the verdict should not be upset except for manifest error or unless clearly wrong. Rouchleau v. Silva, 35 Cal.2d 355, 217 P.2d 929, and cases there cited.

In this cases the jury had to make such decisions with respect to the following subjects:

(a) The failure to replace the defective Alemite fittings when the ship was being reconditioned in the shipyard. Although it was conceded that replacing of such a fitting can generally be done when the ship is at sea, it was for the jury to decide whether under the circumstances of this case it was the duty of defendant to have it done in the shipyard as part of the reconditioning before resuming operation. Although there was no direct evidence that the specific fitting was broken prior to the reconditioning, the jury may have inferred the probability from the condition of the fitting testified to.

Appellant contends that there can be no liability for unseaworthiness with respect to this point because the shipowner's warranty of seaworthiness does not attach to a broken appliance when the seaman is in the act of repairing it, citing Bruszewski v. Isthmian S. S. Co., 3 Cir., 163 F.2d 720. That case is not in point here. In the Bruszewski case it was held that there was no warranty of seaworthiness of a boom as to a longshoreman who came on board in a port for the special purpose of removing it because it was broken. The same may well apply when at sea a ship or any of its appurtenances become unavoidably defective and a seaman is ordered in the course of his employment to make it safe. The seaman assumes the risk normally incident to his perilous calling. The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 711, 80 L.Ed. 1075; Roberts v. United Fisheries Vessels Co., 1 Cir., 141 F.2d 288, 292. However, there can be no application of this rule if the necessity of the dangerous repair was caused by the unseaworthiness of the ship or its appurtenances at the beginning of the voyage, and the seaman was not on board for the special purpose of remedying the unseaworthiness known to him.

(b) The sufficiency of the tools provided for the replacing of the fittings. From the conflicting evidence the jury could believe that under the circumstances of the case easy-outs or small handdrills should have been carried for that purpose. See Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 856, 86 L.Ed. 1166.

(c) The providing of goggles. Even if the evidence did not support an inference that there were no goggles aboard except one pair on the grinder which was not to be removed, the jury could hold that defendant was remiss in keeping the goggles in places where they could not easily be found, without informing those who might need them that they were available and where they could be had. If plaintiff had been negligent in not asking the right persons such negligence would not bar recovery but only permit reduction of damages. John A. Roebling's Sons Co. of New York v. Erickson, 2 Cir., 261 F. 986, 987; The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 711, 80 L.Ed. 1075, and cases there cited.

(d) The sufficiency of the medical care provided. There was evidence from which the jury could find not only unreasonable delay but also a perfunctory discharge of the duty to provide such care, as declared insufficient in De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 819, 87 L.Ed. 1065. The duty of furnishing medical care is an affirmative one, Murphy v. American Barge Line Co., 3 Cir., 169 F.2d 61, 64, not necessarily ending with the end of the voyage. Mayo v. United States of America War Shipping Administration, D. C., 82 F.Supp. 61, but continuing so long as the seaman requires medical attention, Ran v. Atlantic Refining Co., D. C., 87 F.Supp. 853, 854, and whether the care taken to bring a seaman disabled by injury or sickness where he ought to be treated is sufficient under all the circumstances of the case is for the jury. Spellman v. American Barge Line Co., 3 Cir., 176 F.2d 716, 719–20; and see Murphy v. American Barge Line Co., supra.

Although we hold that the evidentiary support of the verdict was not insufficient and the verdict not clearly wrong we consider the case with respect to the different issues mentioned as a close one so that a careful scrutiny of the instructions complained of is in order. Respondent contends that no errors are asserted in the instructions with respect to the duty to provide medical care and maintenance and the responsibility for failure to provide it, that the amounts claimed therefor in the complaint cover all of the verdict, and that therefore possible errors of instruction with respect to other parts of the action need not be reviewed. This is not so. Respondent claimed $10,000 not only for the suffering caused by the failure timely to provide the required care, but also for further physical injury and disability caused thereby, which were not supported by the evidence. There is no basis whatever for the assumption that the verdict of over $10,000 was granted only for unnecessary suffering during the first two days, in which case the amount granted would have been excessive.

Appellant complains of repeated instructions to the effect that the shipowner is under an absolute duty to furnish a ship and parts, tools and equipment seaworthy, safe and in proper condition, and to keep them so, and that his failure to discharge this duty is negligence, which instructions were combined with instructions that the suit was brought under the Jones Act and that the principal question to be determined before liability can be fastened on the defendant is the question of negligence.

In an action solely under the Jones Act these instructions are certainly erroneous. Damages may be recovered under the Jones Act only for negligence, only on the basis of proven fault. De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 820, 87 L.Ed. 1065; Jamison v. Encarnacion, 281 U.S. 625, 50 S.Ct. 440, 442, 74 L.Ed. 1082; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 639, 58 L.Ed. 1062; Adams v. American President Lines, 23 Cal.2d 681, 684, 146 P.2d 1, all cited before. In Vojkovich v. Ursich, 49 Cal.App.2d 268, 273, 121 P.2d 803, it was held that a judgment awarding damages under the Jones Act to an injured seaman must be reversed because of errors in instructions of this kind. However we have held that here the complaint alleged sufficient facts also for the recovery on the basis of breach of the general maritime duty to provide a seaworthy ship and appliances and safe tools. As pointed out before, this duty is absolute and from that point of view the instructions complained of would be correct except that theoretically the breach of the absolute duty to provide a seaworthy ship and appliances and safe tools need not constiute negligence (It is only prima facie evidence of negligence; Sabine Towing Co. v. Brennan, 5 Cir., 72 F.2d 490, and that the commingling of the two theories is confusing. Both issues should have been mentioned separately to the jury and submitted each with the proper instructions, Bergman v. Sword Line, supra, Sup., 81 N.Y.S.2d 445, 448, and an instruction excluding double recovery on the same facts should have been added. Although the instructions as given are confusing and theoretically faulty, we doubt whether appellant can have suffered prejudice because of them. The absolute liability was restricted to those duties as to which it exists under the general maritime law; the requirement of negligence was stated generally, incorrectly opening the possibility of application also to unseaworthiness. This would be error prejudicial to respondent whic appellant cannot assert. However, it is not necessary to decide the question of prejudice here, because other instructions prejudicially defective under either theory require reversal at any rate. This does not apply to another insruction mentioned by appellant as too absolute together with the preceding ones, to wit, one which requires medical care to be furnished ‘within the earliest possible time.’ Very shortly thereafter the court itself corrected such instruction by the words ‘within the shortest time reasonable, rather’ and this correction seems sufficient.

One of the erroneous instructions attacked by appellant is the following: ‘A seaman such as this plaintiff does not assume the risk of using a so-called simple tool or a tool which he picks out himself. In other words, if you find that the hammer and drift which the plaintiff was using in this case were picked out by the plaintiff and that he used them, he does not assume the risk of using those tools or of any defect which may have existed in them. It is the duty of the ship to provide absolutely safe tools and appliances for a seaman.’ The defect of this instruction is not that it deprived defendant of the benefit of the simple tool doctrine, one of appellant's contentions in this respect. Jacob v. City of New York, supra, 315 U.S. 752, 62 S.Ct. 854, 856, 86 L.Ed. 1166, suggests that the doctrine does not apply to Jones Act cases and that at most its meaning can be that it relieves the master from the duty to inspect simple tools for defects which the servant can ascertain as easily as or better than the master. The our case there is no question of any defect in the hammer or drift or in any other tool or of any lack of inspection. All reference to the simple tool doctrine and to defects in tools should have been omitted, but in that respect the statement cannot have caused prejudice. A correct instruction regarding the risk of choosing and using tools should have told the jury that a seaman does not assume the risk of using a tool he picked out, if no more appropriate one was made available to him. When his negligence in choosing a wrong tool when a proper one is available is the cause of the injury he will be barred from recovery if no unseaworthiness of ship or appliance or negligence of the owner contributed to the injury and otherwise the wrong choice will lead to reduction of damages. Compare Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; The Seeandbee, 6 Cir., 102 F.2d 577, 581–82; Roberts v. United Fisheries Vessels Co., 1 Cir., 141 F.2d 288, 292–93; Vileski v. Pacific-Atlantic S. S. Co., 9 Cir., 163 F.2d 553, 555; McGeorge v. Charles Nelson Co., 107 Cal.App. 148, 151, 290 P. 75. The defect of this part of the instruction given is that it does not distinguish whether more appropriate tools than the one picked out were available or not. We do not think that the effect of such a specific instruction as to the using of tools picked out by plaintiff was sufficiently cured by general instructions given to the effect that if plaintiff's negligence was the sole cause of the injury he could not recover and that if it was a contributory cause it would mitigate damages.

More certainly fatal is the error in the last sentence of the instruction. Neither seaworthiness nor ordinary care require a vessel to have ‘absolutely safe tools and appliances' which often will not exist, or even the best procurable tools and appliances; the equipment or applicance need only be that which is reasonably safe for its purpose. Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 857, 86 L.Ed. 1166; Adams v. Bortz, 2 Cir., 279 F. 521, 523; The Ubbergen, D. C., 30 F.2d 951, 952; The Tawmie, 5 Cir., 80 F.2d 792, 793. The instruction which expressis verbis imposes on defendant an erroneously high duty with respect to an important issue in the case, cannot be cured by a general instruction given that defendant was not an insurer of plaintiff's safety.

Another instruction attacked by appellant reads: ‘If you find from the evidence that the accident was not one which would ordinarily have happened if those having management of the ship and its equipment had used reasonable care, then carlessness and negligence of the defendant, if any, may be inferred by you and a verdict in favor of the plaintiff may be predicated thereon.’ Appellant attacks this instruction as an erroneously formulated and inapplicable res ipsa loquitur instruction; respondent denies that it is a res ipsa loquitur instruction and contends that it is a correct instruction as to inferential proof of negligence. The general rule is that the mere fact that an accident happens and somebody is injured does not raise a presumption of negligence. Negligence has still to be proved. An instruction to that effect was given in this case. However it is recognized that in some cases the circumstances which lead to the injury are such as to ‘give ground for a reasonable inference that if due care had been employed by the party charged with care in the premises, the thing that happened amiss would not have happened. In such cases it is said, res ipsa loquitur,—the thing speaks for itself; that is to say, if there is nothing to explain or rebut the inference that arises from the way in which the thing happened, it may fairly be found to have been occasioned by negligence.’ Sweeney, v. Erving, 228 U.S. 233, 33 S.Ct. 416, 417–418, 57 L.Ed. 815. The instruction quoted purports to describe when such inference may be made. It covers the filed generally indicated as ‘res ipsa loquitur’ and should state the rules accepted in that filed correctly. That it does not do. In the first place the instruction permits the jury to predicate a verdict for plaintiff on such inference solely, disregarding all other evidence tending to explain or rebut the inference, whereas, as said in Sweeney v. Erving, supra, it must be weighed considering all further evidence. Next the instruction omits the requirement for the application of such inference that the instrumentality which caused the accident was within the exclusive control of the defendant or, if such control was not exclusive, that it be found by the jury that plaintiff's operations of the things under his control did not cause the accident. Jesionowski v. Boston & M. R. R., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416; Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468. These cases have relaxed the formerly rigid rule that the instrumentality causing the injury must have been under the exclusive control of the party charged with the negligence and permit the wider application of the res ipsa loquitur principle as stated, leaving the exclusion of other possibilities to the jury. In our case the condition of the Alemite fittings and the tools available on board were under defendant's control. If the jury was of the opinion not only that without negligence normally the replacing of fittings does not cause accidents, but also that plaintiff made a careful use of the tools available, then, but only then, it could conclude that defendant was negligent either in having no more appropriate tools on the ship or not having the fittings replaced where there were such tools. Although under the rule of these newer federal cases we cannot say that the principle res ipsa loquitur is here inapplicable as a matter of law, a clear instruction as to the preliminary question with respect to the applicability of the principle to be decided by the jury was essential. Compare the following instruction given by the trial court in the Jesionowski case to round out his res ipsa loquitur instructions: ‘Of course if the deceased's negligence was the sole cause of the accident the plaintiff here cannot recover. And since there can be no application of the doctrine of res ipsa loquitur if other causes than the negligence of the defendant, its agents or servants, might have produced the accident, the plaintiff is bound, she has the burden, to exclude the operation of such causes by a fair preponderance of the evidence before the rule can be applied. * * *’ [329 U.S. 454, 67 S.Ct. 402]. The omission of such a restricting instruction was prejudicial error.

Respondent concedes that in this procedure the federal rule applies, that if error is shown then there should be reversal ‘unless it affirmatively appears from the whole record that it was not prejudicial.’ McCandless v. United States, 298 U.S. 342, 56 S.Ct. 764, 766, 80 L.Ed. 1205; Lynch v. Oregon Lumber Co., 9 Cir., 108 F.2d 283, 286. We cannot say that there in such an affirmative showing here. For instance, the decision of the jury as to the dubious question whether plaintiff was forced by the absence of proper tools to use one which was dangerous under the circumstances or whether there was a safe tool available and he negligently chose a wrong one may well have been influenced to appellant's detriment by the combination of the three errors in instruction hereinbefore found, by which appellant's duty was overstated, respondent's responsibility understated and an inference of appellant's negligence too easily permitted.

Respondent contends that any error contained in the separate instructions mentioned was overcome by correct instructions given also. The giving of conflicting instructions on a vital issue is in itself prejudicial error. Intagliata v. Ship owners & Mer. Towboat Co., 26 Cal.2d 365, 382, 159 P.2d 1.

The question whether the court committed error in permitting an expert witness for plaintiff to testify as to what was the proper way of removing the fitting aboard ship (to wit with what tool) because the answers would tell the jury what was the best tool instead of whether the tool provided was reasonably safe, need not be decided because no objection on that ground was made. In view of the new trial which will be necessary it may nevertheless be stated that the proof should not relate to what were the best tools but to what were reasonably safe and suitable tools, Jacob v. City of New York, supra, 315 U.S. 752, 62 S.Ct. 854, 857, 86 L.Ed. 1166; this, however, does not mean that testimony as to the advantages and disadvantages of different tools available for the purpose on the market may not be relevant as to the reasonable suitability of the tool procured.

The judgment is reversed.