The opinion of the court was delivered by: MCVICAR
This action is by Harriet Dow, Administratrix of the Estate of Paul Dow, deceased against the Carnegie-Illinois Steel Corporation to recover damages by reason of the death of Paul Dow, which she alleges was caused by negligence of the defendant, or its agents, servants and employees, in failing to furnish a competent crew on the vessel on which Paul Dow was employed as a seaman and also in failing to furnish medical service and treatment at a proper time.
It appears from the evidence that Paul Dow was forty-four years of age at the time of his death; that he was a seaman on the vessel 'James E. Lose' navigated by the defendant on the Monongahela and Ohio Rivers; that he was chief engineer thereof and second in command; that on December 31, 1944, Paul Dow began a regular tour of duty as chief engineer on said boat; that on January 8, 1945, he became sick. He worked on said date from six o'clock A.M. until 12 o'clock noon; he was off duty from 12 o'clock noon until 6 P.M., then he worked from 6 P.M. until midnight; that he had headaches on January 8, 1945; that he continued to work although requested by the Captain to leave the boat for the purpose of getting proper medical care and treatment which he declined for the reason that the present trip would end on the 9th or 10th and that he would be all right until that time. He became worse on the morning of January 9th and was taken to the hospital where he died of meningococcic meningitis.
The jury returned a verdict in favor of the defendant. Plaintiff's motion for a new trial is now before us. Ten reasons are alleged in support thereof. I will limit this opinion to the reasons argued.
Plaintiff contended that the evidence of negligence was so strongly in favor of the plaintiff that a new trial should be granted. The parties stipulated in writing that at the trial of this case the Plaintiff would proceed under the Jones Act, 46 U.S.C.A. § 688, alone, and that any evidence or issue of unseaworthiness only be considered by the Court and the jury in light of the application of the Jones Act; that Plaintiff is relying on unseaworthiness only for the purpose of showing that the same was occasioned by the negligence of the defendant, its agents, employees and servants.
There was evidence that Paul Dow was the chief engineer of the boat, 'James E. Lose'; that he was second in command; that he had headaches on January 8, 1945; that he worked two shifts, as customary on that date; that neither he nor the Captain, nor any member of the crew knew what was wrong with him. The Captain advised him on the 8th that he land so that he could receive proper medical advice and treatment; that he declined to do so stating that he would wait until the end of the present tour or trip; that he became seriously sick on the morning of January 9th and was taken by the defendant to a hospital where he died the next day.
The evidence as to negligence was oral. The credibility of the witnesses was for the jury. If the Captain was negligent in not forcing Dow to receive medical treatment, Dow was also negligent. The question of negligence of the Captain or of Dow could not be measured by the facts which appeared after he had been taken to the hospital. The evidence of negligence was not strongly in favor of the Plaintiff.
Rule 61 of the Federal Rules of Civil Procedure 28 U.S.C.A.following section 723c, provides that: 'No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.' It does not appear to the Court that a refusal of Plaintiff's motion for a new trial is inconsistent with substantial justice.
Plaintiff, in her 8th reason in support of her motion for a new trial, alleges that the Court erred in charging that the jury could take into account the contributory negligence of Paul Dow. Plaintiff in her brief, argues that the Court charged the jury that it could take into account the contributory negligence of Dow in arriving at a verdict. This contention is not correct. The Court instructed the jury that its verdict would depend on whether Paul Dow's death was caused by the negligence of the defendant or not. On the question of damages, the Court did instruct the jury that it should pass upon the question whether Dow was guilty of contributory negligence or not, and if guilty, that the amount of a verdict for the Plaintiff should be reduced as provided for in the Federal Employers' Liability Act, Sec. 3, 45 U.S.C.A. § 53. If defendant was negligent, it is evident that plaintiff was guilty of contributory negligence because he declined to receive medical care or treatment after being advised that he should receive the same from the Captain. This question, however, is not material as the verdict was based upon the question, whether Dow's death was caused by the negligence of defendant or not.
Plaintiff, in her brief, cited Aguilar v. Standard Oil Co., 316 U.S. 724, 730 63 S. Ct. 930, 87 L. Ed. 1107, which is not in point, as it was not a case under the Jones Act. If what the Court said in that case in regards to contributory negligence was applicable, to the effect that the seaman's negligence, in a maintenance and cure case, will not preclude recovery unless there was some wilful misbehavior or deliberate act of indiscretion sufficient to deprive the seaman of protection, it would not control the present case as there was evidence from which the jury could find that the decedent was guilty of a deliberate act of indiscretion.
Defendant is not chargeable with plaintiff's surprise, if any. Plaintiff took her chances of the jury's verdict after medical testimony had been offered on both sides without making any objections thereto or asking for a continuance.
I am not convinced that a new trial should be granted for the purpose of giving Plaintiff an opportunity to offer additional medical evidence, nor does it appear to the Court that the refusal to grant Plaintiff's motion is inconsistent with substantial justice as required by Rule 61.
Plaintiff, in her 3rd and 5th reasons in support of her motion, alleges that the Court erred in admitting evidence of the divorce suits and orders of support which had been made in actions between the present Plaintiff, Harriet Dow and the decedent, Paul Dow. This evidence was received only on the question of damages. The jury found that the defendant was not negligent. This reason is not material in determining the present action for a new trial. ...