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 law based on the doctrine of unseaworthiness. 46 U.S.C.A. § 688.
The case was administered by jury trial. The verdict was found in favor of defendant.
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 instructing the jury on the subject of contributory negligence.
(c) The Court erred in refusing to admit evidence and permit plaintiff to testify on the subject of how barge rails became loose or broken at other times.
(d) The Court erred in permitting the jury to entertain testimony of two defendant witnesses who had prior to trial issued contradictory statements.
(e) The trial jurors and the panel were improperly chosen, not being representatives of a cross-section of the community, and having been subjected to improper 'surveillance' and intimidation.
The plaintiff was employed as a seaman in the capacity of a deckhand aboard defendant's steamer, 'Sailor'. On October 1, 1946, plaintiff was engaged in the performance of his duties aboard the vessel while the same was in navigation on the Ohio River at Aliquippa, Pennsylvania. Plaintiff, at the time, was swinging a line preparatory to taking it off the boat when he was suddenly caused to fall into the barge on which he was stationed, injuring his left shoulder.
Plaintiff's primary contention of negligence lay in his allegation that the barge rail broke off as he wedged his foot against it for support, while defendant alleged that plaintiff lost his balance and fell.
There was ample evidence in this case to justify the jury in its finding in favor of the defendant. 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 v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Masterson v. Pennsylvania R. Co., 3 Cir., 182 F.2d 793. Furthermore, in a motion for a new trial I must assume that the jury has followed the instructions of the court. Boice v. Bradley, D.C., 92 F.Supp. 750, 751.
The charge with respect to contributory negligence is objected to on the ground that no such issue was involved in the case.
Under the general maritime law and the Jones Act, the doctrine of comparative negligence is not a bar to recovery but it can be invoked for the purpose of mitigating damages. Stark v. American Dredging Co., D.C., 66 F.Supp. 296; The Max Morris, 137 U.S. 1, 11 S. Ct. 29, 34 L. Ed. 586; American Stevedores, Inc., v. Porello, 330 U.s. 446, 458, 67 S. Ct. 847, 91 L. Ed. 1011; McGee v. United States, 2 Cir., 165 F.2d 287.
The Court placed special emphasis upon the fact that the applicability of the rule relating to contributory negligence was solely for the determination of the jury, and that contributory negligence, if it existed, did not bar the right of the plaintiff to recover either under the Jones Act, based on negligence, or under the Admiralty law, based on the doctrine of unseaworthiness. That it should be considered, if at all, only by way of ...