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MCLEOD v. UNION BARGE LINE CO.

January 22, 1951

McLEOD
v.
UNION BARGE LINE CO.



The opinion of the court was delivered by: GOURLEY

This proceeding relates to a claim for damages under the Jones Act based on negligence and the maritime and admiralty laws based on the doctrine of unseaworthiness. 46 U.S.C.A. ยง 688.

The right to recover could be based on either the doctrine of negligence or unseaworthiness. The plaintiff was not required to elect and it was proper to submit both issues to the jury. McCarthy v. American Eastern Corp., 3 Cir. 175 F.2d 724; German v. Carnegie-Illinois Steel Corp., 3 Cir., 156 F.2d 977.

 The case was administered by jury trial. The verdict being: 'The Jury after due consideration find the accident of Mrs. Lavinda McLeod was caused by her own negligence and that the Union Barge Line Corp. are in no way responsible of negligence or unseaworthiness of boat 'Neville'.'

 After the jury was polled at the request of the plaintiff's counsel, the Court directed that judgment be entered on the verdict in favor of the defendant, Union Barge Line Company, and against the plaintiff, Mrs. Lavinda McLeod.

 Motion for a new trial has been filed by the plaintiff. It is contended:

 (a) The verdict is against the evidence and the weight of the evidence.

 (b) The Court erred in its charge on 'unseaworthiness.'

 (c) The Court erred in its charge on proximate cause and contributory negligence.

 (d) The Court erred in failing to instruct the jury that the Captain's report was an admission binding upon the defendant wherein it was stated that the plaintiff stooped over to put a piece of cardboard under the leg of a dresser and when the plaintiff raised back up strained her back.

 The plaintiff was employed as a seaman in the capacity of chambermaid aboard defendant's motor vessel 'Neville.' At the time of plaintiff's injury, the vessel was in navigation on the Ohio River, and plaintiff was engaged in the performance of her duties aboard the vessel in cleaning up the maids' room. Plaintiff was required to move the dresser in order to remove the accumulated dust and dirt under and behind the dresser. After having done the necessary cleaning, the plaintiff had to move the dresser back into its position. She injured her back when she stooped over to put a piece of cardboard under the leg of the dresser and when she raised back up, strained her back. Her disability consisted not only of a continuing back injury, but also of a psychotic or mental illness which was precipitated after her back injury, and medical proof was offered by the plaintiff to show a causal relation with the accident.

 (a) The Verdict is Against the Evidence and the Weight of the Evidence.

 I do not believe that the verdict rendered was against the weight of the evidence. It is my duty to recognize that a Court is not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions, or because the court regards another result as more reasonable. Tennant, Administratrix, v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Masterson v. Pennsylvania R.R. Co., 3 Cir., 182 F.2d 793. Furthermore, in a motion ...


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