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TOMPKINS v. PILOTS ASS'N FOR BAY & RIVER DELAWARE

March 5, 1940

TOMPKINS
v.
PILOTS ASS'N FOR BAY AND RIVER DELAWARE et al.



The opinion of the court was delivered by: KIRKPATRICK

At the first trial of the case, the Court instructed the jury to find a general verdict and, in addition, submitted written interrogatories having to do with the issues of negligence on the part of the defendants and contributory negligence on the part of the deceased. The jury answered the interrogatories in accordance with the plaintiff's contentions, agreed on a verdict for the plaintiff, but could not agree upon the damages.

 The Court ordered a partial new trial upon the single issue of damages, and postponed entering judgment for the plaintiff until after the verdict upon that issue.

 The partial new trial resulted in a verdict for $8,000, apportioned, $1,500 to the widow and $6,500 to the child. The following motions are now before the Court:

 (a) A motion by the defendants for judgment notwithstanding the verdict, on the ground that there was no evidence of negligence.

 (b) A motion by the defendants for a new trial, in support of which sixteen reasons are presented, the last of which was the action of the Court in granting a partial new trial limited to the question of damages.

 (c) A motion by the plaintiff for a second partial new trial, restricted to the question of damages, upon the ground that the amount awarded the widow, in the jury's apportionment of the verdict, was inadequate.

 (a) The defendants' motion for judgment is denied.

 The interrogatories submitted to the jury indicate what the issues of negligence were. Question 2 was, "* * * was any negligence on the part of the defendants' officers or employees involved in the removal of the steps and opening the gangway and allowing it to remain open?" And Question 4, "Did the members of the crew of the pilot boat use every reasonably means to save Littleton's life after he had fallen into the sea?" The jury's answer to Question 2 was "yes." Their answer to Question 4 was "No."

 Thus the jury found that the defendants (or their agents) were negligent in two entirely distinct and unrelated particulars. If there was sufficient evidence to justify the submission of the issue as to either to the jury, the verdict must be sustained. I am of the opinion that the submission of the second issue (Question 4) was justified by the evidence, and, therefore, need not discuss the defendants' elaborate argument that there was no evidence of negligence in connection with the open gangway.

 The Court instructed the jury that it was the defendants' duty to use every reasonable means to save Littleton's life after he had fallen into the sea. This was accepted by both parties as a correct statement, no objection having been made, either by exception or by request to charge otherwise, and no complaint being made of it in these motions.

 The circumstances of Littleton's drowning were undoubtedly singular. He was a good swimmer, there was only a small sea running, and the ship was under very little headway. The accident occurred at night, but an alarm was immediately given, a searchlight turned upon him, and he was in full sight of those on board from the time he fell into the sea until he drowned.

 The ship put about slowly and came to a full stop. Apparently Littleton was never more than 25 or 30 feet from it. While the skiff was being lowered two life rings were thrown from the bridge, both of which fell within about four feet of him. He made no effort to lay hold of them, and there is nothing to show that he knew they were there. He kept on swimming and called out that he was all right. Then, as the skiff, which had come around under the stern of the ship, approached him, less than ten minutes after he ...


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