Salem v. United States Lines Company/Dissent Harlan

Mr. Justice HARLAN, dissenting in part and concurring in part.

I do not read the Court of Appeals' opinion either as holding that, because of 'peculiar fact circumstances' petitioner's claims respecting the alleged faulty construction of the radar tower required 'supporting expert testimony' (ante, 370 U.S., pp. 35, 32, 82 S.Ct., pp. 1122, 1120) (emphasis added), or as establishing a general proposition that such testimony is needed in every instance where a seaman claims to have been injured because of his employer's failure to equip a ship with safety devices.

Taking its opinion in light of the record, I think it apparent that the Court of Appeals held no more than that reversal was required because 'there was no evidence of any kind in the record to support the view that railings or other safety devices could feasibly be constructed, or that failure to provide them constituted negligence or made the ship unseaworthy.' 293 F.2d at 123. (Emphasis added.) To me it seems clear that the court referred to expert testimony simply as an example of the kind of evidence that the petitioner might have offered on this score. Consequently, the District Court's charge that the jury could find the respondent negligent 'in failing to provide railings or other safety devices' had injected into the case a theory of liability which had not been presented to the jury by the evidence introduced at the trial. This has uniformly been held to constitute reversible error. E.g., Mandel v. Pennsylvania R. Co., 2 Cir., 291 F.2d 433; Smith v. Ellerman Lines, Ltd., 3 Cir., 247 F.2d 761, 766; see Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 78-79, 27 S.Ct. 412, 51 L.Ed. 708.

The trial transcript, insofar as it has been reproduced in the record before this Court, bears out the conclusion of the Court of Appeals that evidence with respect to the alleged failure to maintain appropriate safety devices was entirely lacking. Petitioner's evidence, apart from medical testimony concerning the extent of his injuries, related almost entirely to the alleged slippery condition of the platform leading to the crow's-nest, the inadequate and defective lighting, and the negligence of the lookout. Petitioner himself did testify that there was no 'grip' or 'handrails' at the crow's-nest level, and photographs that were introduced into evidence confirm this undisputed assertion.

With nothing more before the jury than this, the trial court's instruction certainly left the jury entirely at large to reach an uninformed conclusion as to what would have constituted reasonable conduct on the part of the respondent with respect to the equipping of this part of the ship. No evidence of any kind was introduced to show whether radar towers on vessels of this sort ordinarily were equipped with safety devices or whether seamen assigned thereto had need of such equipment in the ordinary course of their activities. Expert testimony would have served this purpose, as would any other evidence bearing probatively on the reasonableness of respondent's conduct in failing to equip its vessel with these devices. In the absence of any such evidence the Court of Appeals was entirely justified in holding that the District Court's instruction amounted to reversible error.

I agree with this Court's holding as to future maintenance. I would affirm.