decided: August 19, 1957; As Amended October 9, 1957.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
Was "fundamental error", reversible per se, committed by the trial judge when, in the presence of both counsel and the jury, he answered the latter's written request for further instructions without reading it verbatim to counsel?
Has the plaintiff waived his right to consideration of this question by reason of his failure to object at the time and/or to assign it as a reason for a new trial as required by the Federal Rules of Civil Procedure [28 U.S.C.]?
Did the trial judge err, when in his instructions to the jury, he limited the issue of proximate cause to the theory asserted by the plaintiff in his pleadings and his testimony at the trial?
These issues are presented on this appeal from the Order of the United States District Court for the Eastern District of Pennsylvania denying plaintiff's motion for a new trial and from the Judgment of that Court entered against him in accordance with a jury verdict in an action for personal injuries.
The facts may be summarized as follows:
The plaintiff, David Smith, a longshoreman employed by the Atlantic & Gulf Stevedoring Company, brought suit against the defendant Ellerman Lines, Ltd., owner and operator of the "S.S. City of Chester" to recover damages for personal injuries sustained on October 22, 1952, by reason of the unseaworthiness of the vessel and its negligence.
On the day of his injury plaintiff was one of a crew of four longshoremen working on a railroad gondola car on the dock at which the "S.S. City of Chester" was moored. His job was to help in placing straps around heavy crates in the gondola car and then to secure them to a cargo hook attached to and operated by the vessel's winches. Once hooked-on, the crates were hoisted aboard the vessel and unloaded into one of its holds.
In his pleadings, the plaintiff asserted that by reason of the unseaworthy condition of the vessel's winches or their negligent operation, he was struck by one of the creates and "knocked" by it from the gondola car to the reilroad tracks below. His testimony, and that which he adduced at the trial was to the same effect.
Both in its pleadings and at the trial defendant denied that the vessel's winches were unseaworthy or negligently operated and asserted that plaintiff's injuries were not due in any way to their operation. It adduced testimony that the plaintiff fell while walking along the sixinch ledge of the gondola car.
The trial judge instructed the jury that if the winches were not working property either by reason of unseaworthiness or negligence, and that was the proximate cause of plaintiff's injury, he was entitled to recover; that the "simple question" was whether the plaintiff was "knocked-off" the gondola car by the crate due to the improper functioning of the winches or whether he fell off the car without being struck; "If the former, he would be entitled to a verdict; if the latter, he would not ..."
Before the jury retired the trial judge asked counsel "to call my attention to anything that you think I have omitted or anything that you think I should not have said, so that if I have been in error I will have an opportunity to correct it." To that request plaintiff's counsel said "I have nothing to add."
After the jury had deliberated for one hour and fifteen minutes it returned to the court room with a written request for instructions. The following colloquy then ensued, counsel for both sides being present:
"The Court: Members of the jury, I have a written request here for instructions. Part of that request states: "We feel the man fell and did not get hit by the draft.'
"Are you all agreed that that is the fact?
"A Juror: Not entirely. The majority are.
"The Court: Well, then, you will have to go back and determine that question.
"And I should say to you that this man is not entitled to any compensation, regardless of who paid him, if he fell and did not get hit by the draft. You have nothing to do with the question of who paid his wages: you have no right to give him any verdict unless you find that he was hit by the draft through the negligence of the defendant in the case. So just forget all about the question of giving him compensation. You have nothing to do with that. The law takes care of that situation. I am not saying that he won't get any compensation, but that is for the law, it is not for the court and not for the jury. The only thing for you to decide is whether he has made out his case, that he was injured through the negligence of defendant. If he hasn't made that case out your verdict should be for the defendant, and if he has made it out, then you have the rule of damages.
"Mr. Kuby [plaintiff's counsel]: If Your Honor please, may we see you at side bar before you send the jury out?
"Mr. Kuby: If Your Honor please, though much has been said about the case in connection with the actual hitting, I think it is still a question of liability if this man backed off that car in an effort to get away from the swinging draft.
"The Court: Oh, he didn't say so. He says he was hit.
"Mr. Bechtle [defendant's counsel]: There is no evidence as to that.
"The Court: I mean, I can't build up a theory for him. The only theory that has ever been advanced was that he was hit by the draft. The case has been tried on that basis from beginning to end. It was never suggested at any time, in argument or otherwise that he stepped back to avoid the draft. He didn't so ...