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TURCICH v. LIBERTY CORP.

February 26, 1954

TURCICH
v.
LIBERTY CORP



The opinion of the court was delivered by: WATSON

This is an action under the Jones Act. *fn1" The plaintiff, Mary Turcich, administratrix of the estate of John Zvanja, deceased, brought the action against The Liberty Corporation to recover the pecuniary loss alleged to have been suffered by the deceased's three sisters and two brothers as a result of the death of John Zvanja, an employee of the defendant corporation.

The case was tried by the Court and a jury. The jury returned a verdict for the defendant and the plaintiff has moved for a new trial. A hearing was duly held on the motion for a new trial and the matter is now before the Court for disposition.

 The evidence showed that the decedent was a seaman on the defendant's dredge Freedom; that on May 25, 1951, the defendant with three other members of the crew crossed on defendant's launch Morning Star from the dredge to the New Jersey side of the Delaware River where they visited a drinking establishment; and that on their return when they arrived at the dredge, the decedent fell off the launch into the water and was drowned.

 The contention of the plaintiff is that the deceased's death was the result of careless handling of the launch Morning Star by one of the defendant's employees, and the unseaworthiness of the launch Morning Star.

 The plaintiff has assigned seven reasons in support of her motion. After careful consideration of the arguments and briefs of counsel, I conclude that Reasons 1, 2, 3, and 4 are without merit and require no discussion.

 Reason 5 is as follows:

 'The Learned Trial Judge erred in failing to properly and adequately define 'unseaworthiness' in his charge to the jury'.

 The plaintiff in her request for instructions did not request the Court to define 'unseaworthiness' nor did she object to the alleged failure of the Court to define 'unseaworthiness' before the jury retired to consider its verdict.

 Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides:

 '* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *'

 The Court in its charge did say:

 '* * * You will recall that I said to you that before you can find a verdict for the plaintiff, you must find from the evidence that the negligence on the part of the defendant was the proximate cause of the decedent's death. * * *

 'Let us see what is meant by negligence. * * *

 'Negligence is defined as the want of due care under the circumstances. It has also been defined as the omission of doing what an ordinarily prudent person or man or woman would do under such circumstances, or the doing of that which an ...


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