The opinion of the court was delivered by: Grim, District Judge.
The jury in this case brought in a verdict for the defendant.
During its deliberations the jury sent the following note to
the trial judge: "We think that both parties were equally guilty
of negligence, but we would like to place the Court costs on the
defendant. Can we do this?"
Without consulting counsel the trial judge answered the note by
writing on the bottom of it the following reply and returning it
to the jury: "You cannot do this. You have nothing to do with the
placing of costs."
This action of the trial judge is the principal ground of
plaintiff's motion for a new trial, which is the problem now
before the court.
It would seem that the jurors were of the opinion that if both
parties were equally guilty of negligence the plaintiff could not
recover, and that with this in mind they brought in their verdict
for the defendant. In this seaman's action under the Jones Act,
46 U.S.C.A. § 688, that is not a correct principle of law as the
verdict should be cut in half, but not reduced to nothing, where
both parties are equally guilty of negligence. Perhaps, if
counsel for the plaintiff had been called at the time the note
was received by the trial judge he would have requested
additional instructions to the jury in reference to the effect of
contributory negligence on the plaintiff's right to recover. If
he had done this, undoubtedly his request would have been
Since it seems clear that the jury misunderstood the court's
admittedly proper charge, and the court did not give counsel an
opportunity to suggest a correction of this misunderstanding, in
the interest of justice a new trial should be granted. See
Arrington v. Robertson, 3 Cir., 1940, 114 F.2d 821, 823, Parfet
v. Kansas City Life Ins. Co., 10 Cir., 1942, 128 F.2d 361.
And now, February 28, 1952, it is ordered that plaintiff's
motion for a new trial be and it is hereby granted.
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