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358 F2d 733 Walker v. Ohio River Company

358 F.2d 733

Evelyn WALKER, Appellant,
v.
The OHIO RIVER COMPANY.

No. 15633.

United States Court of Appeals Third Circuit.

Argued Feb. 24, 1966.
Decided March 18, 1966.

Harry Alan Sherman, Pittsburgh, Pa., for appellant.

Harold R. Schmidt, Pittsburgh, Pa. (Anthony J. Polito, Rose Schmidt & Dixon, Pittsburgh, Pa., on the brief), for appellee.

Before HASTIE and SMITH, Circuit Judges, and KIRKPATRICK, District judge.

PER CURIAM:

1

Appealing from a decree denying her maintenance and cure, the plaintiff in this case has the burden of demonstrating that the trial court erred in finding that 'upon all of the evidence this Court is unable to conclude that the libellant suffered any injury on board respondent's motor vessel'.

2

No one but the libellant witnessed the alleged shipboard fall upon which this claim is predicated. The trial court disbelieved her testimony that she fell and injured her back. This disbelief was predicated upon several considerations. The libellant testified that she reported the alleged accident to the cook, the mate and the master. However, each of them denied receiving any such report. The libellant also failed to report the alleged accident to the respondent operator of the ship, although she knew of a rule requiring that such an accident be reported promptly. The libellant testified that she had suffered no other back injury. However, there was impressive testimony that she had suffered two earlier back injuries. A doctor to whom libellant had given her history shortly after the alleged accident testified that he did not believe that the libellant's condition had been caused by the alleged accident in the course of her employment. Thus, the record amply justified the court's refusal to find that libellant had suffered a shipboard injury.

3

In addition, we find no abuse of discretion in the trial court's refusal to reopen this case to permit the libellant to attempt to present corroboration of her story, particularly since she admits that no one other than herself witnessed the alleged accident.

4

The judgment will be affirmed.