The opinion of the court was delivered by: KALODNER
This case was tried before me with a jury, and resulted in a verdict for the plaintiff in the amount of $2,387.50, of which $137.50 presumably represented hospital and medical bills.
The defendant at the close of the evidence moved for a directed verdict and the motion was denied. After rendition of the verdict, defendant filed a motion to set aside the verdict and enter judgment in favor of the defendant on the grounds (1) that the plaintiff had failed to meet the burden of proving that negligence on the part of the defendant was the proximate cause of his injuries, and (2) that plaintiff was guilty of contributory negligence as a matter of law.
Defendant also moved for a new trial on the grounds that the verdict was against the law; against the evidence and the weight of the evidence; that the verdict was against the charge of the court; that the verdict was excessive; also, upon the court's refusal to grant the motion for a directed verdict for the defendant.
According to the story accepted by the jury, the plaintiff, after descending the gangway of the ship, walked south across the width of the pier, and alongside cargo piled to the height of about seven feet. Proceeding thus, the plaintiff observed the end of the pier and the open space beyond it (in which the railroad tracks are laid). He also observed the end of the pile of cargo around which it was necessary for him to turn to the right, in order to obtain egrees to the street. This means of egress, he said, comprised a two-foot space between the end of the pile of the cargo and the end of the pier.
The plaintiff stated that the pile of cargo alongside which he was walking extended about 16 feet. He admitted seeing the drop at the far end of the pier where the railroad tracks were, when he had traversed about half the extent of the cargo. Defendant's measurements showed that the pile of cargo extended considerably more than 16 feet, but the discrepancy has little bearing on the essential elements of the case so far as the Motion for Judgment N.O.V. is concerned.
Darkness had set in when the plaintiff left his ship and the pier was lighted by electricity. Just about the time the plaintiff reached the end of the pile of cargo, preliminary to making a right turn so as to leave the pier by the open door, which was to his right, or west of him, as he was walking along the pier, the lights of the pier were suddenly extinguished without warning. Immediately thereafter the plaintiff fell off the edge of the pier onto the railroad tracks below and was injured.
There was no witness to the fall. The plaintiff had been accompanied by another seaman when he left the boat, and his companion was walking behind him, but no testimony from his companion was forthcoming.
Exactly what occurred between the extinguishing of the lights and the fall is not clear. Only the plaintiff testified to those events, and that testimony discloses some inconsistencies, and little clarity or precision. I quote it (N.T. p. 16):
"A. Well, there was cargo until I started to make the turn. I was going to make the turn at the end of the cargo, and just as I went to make the turn all the lights went out.
"Q. What happened to you? A. Well, I got a jump and as I jumped my feet went out from under me.
"Q. The lights went out. Did you move after the lights went out? A. If I can remember right, I ...