Argued October 25, 1921
Decided November 22, 1921
Warren Bigelow and Silas B. Axtell for appellant.
James McKown, Jr., and Henry M. Hewitt for respondent.
The plaintiff was a seaman on the steamship Boniface owned by the defendant. While engaged in his duty he fell from a mast, dislocated his shoulder and fractured the greater tuberosity of the humerus. He complains that after the injury the master neglected, failed and refused to give him proper care. The trial judge submitted two questions to the jury: whether the master was negligent in failing to send the plaintiff to a hospital in one of the ports at which the ship subsequently touched, and whether the master failed to act with reasonable prudence in requiring him to perform work which he was not in fit physical condition to perform. A verdict for the plaintiff was reversed by the Appellate Division and the complaint was dismissed. We have, therefore, to examine the record and determine, giving to the plaintiff the benefit of all the evidence in his favor and all inferences that may properly be drawn therefrom, whether there is any evidence from which the jury might find that the master did not render or permit that adequate care and attention or those hospital services that the plaintiff was entitled to receive.
On board was a competent ship's physician. For his negligence the defendant was not responsible. Upon his advice, received in good faith, the master might rely. Upon it the master might act. So acting, no liability can be predicated upon error or mistake.
The accident happened on February 4th when the ship was three days from New York. It resulted in such pain that the plaintiff refused to submit that night to an examination. The next day the shoulder and arm were swollen, so accurate diagnosis was difficult. The physician discovered and reduced the dislocation, however, but did not find the fracture. He told him, however, that at the first port of call he would take him to a hospital and examine him by means of an X-ray. Six days later the ship reached Barbadoes where there was a hospital. Great pain had continued. The arm then hung with the palm out and the plaintiff could not use it. He requested to be sent ashore and the physician also desired it. The master refused. He did so because he feared the British authorities would discover that the ship was equipped with wireless — at that time forbidden. We may assume that in the hospital was an X-ray instrument. They are in general use. It is common knowledge that such photographs are constantly taken in every hospital. It is to prefer shadow to substance to make the result of this action depend on affirmative proof of this matter. Had the apparatus been used it may be inferred that the fracture would have been discovered. When later it was used the fact at once appeared. Instead of being sent ashore the plaintiff was told that he had been examined by some physician while asleep and that nothing was the matter with him. Apparently this statement could not be true.
Thence the ship sailed to various South American ports. Some two weeks after the accident the plaintiff was removed from the ship's hospital, where he had been treated, and sent into the forecastle. Nothing was thereafter done for him except that he was given some pills. The ship's physician still discovered no fracture, although he suspected one. The master, however, made some tests of his own and decided that there was none. Consequently he seems to have concluded that the plaintiff was shamming. The latter continuously suffered great pain but the master used violent language to him and compelled him to do work, some of a kind unsuited to his condition, notwithstanding his protests.
The ship again reached New York on April 22d. The plaintiff was taken to the Long Island Hospital. There his true condition was discovered. He was treated and the trouble was largely relieved, although his arm will never recover its former strength.
Under these circumstances the jury might have found that the master did more than rely in good faith on the advice of a competent physician; that for reasons of his own he personally prevented the plaintiff from receiving treatment in a hospital at Barbadoes; that because of his personal inspection he reached the conclusion that the plaintiff was feigning and compelled him to do improper work; and that in both these respects he failed to exercise that reasonable prudence required of him.
If so, did such interference result in injury? It is said that the treatment in any event would have been the same. In view of other testimony the jury might have doubted this conclusion. And the physician also admits that some of the work which the plaintiff says he did was unsuited to a man who had the injuries which the plaintiff claims existed. The prompt relief experienced when the plaintiff was sent to the hospital at Long Island permits the inference that a like result would have followed the treatment at Barbadoes.
The judgment of the Appellate Division should be reversed and that of the trial court affirmed, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN and CRANE, JJ., concur.