Before GOODRICH and STALEY, Circuit Judges, and STEEL, District Judge.
These are appeals taken by the shipowner, which was both defendant and third-party plaintiff in the actions below, from judgments entered by the district court upon the jury's verdicts. The primary action was initiated by a longshoreman, Dougherty, to recover damages for personal injuries incurred while unloading appellant's ship, the S.S. Bienville, at Philadelphia on October 8, 1952. Appellant joined Dougherty's employer, the stevedoring contractor, as a thirdparty defendant. Upon the answer to the interrogatories propounded to the jury, the district court gave judgment for Dougherty against the appellant and for the stevedoring contractor, Ryan Stevedoring Company, in the third-party action.
Two strikingly different theories were propounded as to the cause of the accident. Dougherty contended that the accident resulted when a short hatch board gave way as he was stepping on it while engaged in covering the hatch. Appellant denied the hatch board was too short and asserted that the accident was the result of careless placing of the blind or queen beam so that the board was insecure and tipped when it was stepped on.
Plaintiff fell into the lower hold, striking a beam on his way down. Upon his removal from the hold, he was taken to a hospital. The extent of his physical injuries attributable to the accident was hotly contested. The evidence on behalf of Dougherty tended to show severe head and back injuries of a permanent nature, while the evidence proffered by the shipowner indicated three congenital weaknesses in his lower spine of which the most serious was identified as a "spondylolisthesis" or slipping of a vertebra from its normal position. Though still wearing a back brace, he was inducted into military service the following March 26. As a result of his disability (whether caused by the accident, the congenital weakness, or a combination of both was in dispute), he was granted a medical discharge within three months.
The extent of a mental disturbance attributable to the accident was also in issue, the plaintiff dating its inception as shortly after the accident but prior to the Army service, and the shipowner contending it developed following his discharge from the Army. In any case it was testified that he underwent treatment at Philadelphia Psychiatric Hospital for schizophrenia for about three months. He was then transferred to the psychiatric section of the Veterans Administration Hospital at Coatesville, Pennsylvania, where he remained for a further six months. He was permitted to leave Coatesville in November, 1954, his schizophrenia being in a state of remission.*fn1 In 1955, plaintiff returned to work as a longshoreman and was so employed sporadically during 1956 and 1957. He was married in August, 1957, shortly prior to the trial. It was apparently accepted by all parties to the action that the plaintiff has "borderline intelligence," which limitation was not connected in any way with the accident.
The verdict of the jury was in favor of the plaintiff and against the defendant shipowner. In answer to the special interrogatories, the jury found that the accident occurred as a result of the short hatch board, that there was no contributory negligence on the part of the plaintiff and that the damages were in the amount of $100,000. Accordingly, judgment was entered in favor of the plaintiff in that amount and in favor of the defendant stevedoring company in the third-party action. Defendant-shipowner filed a motion for new trial which was denied without supporting opinion.
Appellant requests that the judgments be set aside and that a new trial be granted on all issues in the original and third-party actions because of improper cross examination by the plaintiff of a medical witness, improper and prejudicial criticism by the trial court of one of appellant's witnesses, the permitted use by the jury of a ship's model that had not been formally admitted in evidence, failure to properly instruct the jury, and excessiveness of the verdict.
The case took twelve days to try, and the record exceeds 1300 pages. It was undoubtedly spiritedly contested by three able counsel with little, if any, agreement on any major issue. Under such circumstances it is well for this court to heed the admonition set out in Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S. Ct. 457, 471, 86 L. Ed. 680, to the effect that "We must guard against the magnification on appeal of instances which were of little importance in their setting." In appraising the instances of alleged error presented by appellant, we are equally aware that prejudice may be so highly probable as a result of improper conduct of counsel that its non-existence cannot justifiably be assumed. Berger v. United States, 1935, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314; New York Central Railroad Co. v. Johnson, 1929, 279 U.S. 310, 49 S. Ct. 300, 73 L. Ed. 706.
The cross examination complained of by the appellant allegedly occurred when plaintiff was cross examining one of defendant's medical witnesses, Dr. A. M. Ornsteen. The interchange is fully set out in the margin.*fn2 It is contended by the appellant that the trial court failed to correct in the minds of the jury the prejudice resulting from the question concerning "adequate compensation" and should have granted a motion to withdraw a juror. As will be noted, the court sustained the objection to the question, which ruling we think is at least doubtful*fn3 in the light of the direct examination, but we need not decide that for it is quite apparent that if it were improper cross examination it was not so prejudicial as to require the withdrawal of a juror.
Appellant further contends that it was prejudiced by a motion made by plaintiff to correct the record kept in a ledger at one of the hospitals in which plaintiff received treatment. The record related to the treatment afforded plaintiff and indicated that the lacerations and sutures were on the left side of his face. Another record apparently indicated that the lacerations were on the right side of plaintiff's face, and there was additional evidence to that effect. In objecting to the motion, appellant never contended that there was any dispute as to where the lacerations and scars were. It made objection merely to the act of correcting hospital records. Following the granting of the motion, the trial court assured appellant it might argue the discrepancy to the jury. Whatever the merits of the issue, the appellant by no stretch of imagination was prejudiced to the extent that we should interfere at this juncture in the case.
Appellant also asserts that the trial judge committed error by the manner in which he examined and referred to its witnesses. As a result of the nature of the damages in controversy, this case involved extensive psychiatric testimony. A study of the record clearly indicates the perplexity that must have been occasioned by the mass of testimony, oftentimes contradictory. In an effort to clarify certain testimony, the trial judge questioned some of the witnesses. The trial judge in the federal court not only has the right but the duty to attempt to clarify technical testimony. In Burgman v. United States, 88 U.S.App.D.C. 184, 188 F.2d 637, certiorari denied, 1957, 342 U.S. 838, 72 S. Ct. 64, 96 L. Ed. 1347, an objection was made to the interruption by the judge of the testimony of expert witnesses:
"Appellant says the trial court erred in interrupting one of his expert psychiatrists. Five experts testified, three for the defendant and two for the prosecution. To the appellant's contention here in respect to the interruption by the judge during the testimony of this one witness, the Government in its brief replies: 'The judge intervened extensively during the questioning of each of these five witnesses.' And examination of the record shows this to have been so.
"But such intervention is not in itself error. Quite the contrary, when the issue which the jury must determine involves the technical terms and concepts of expert psychiatric testimony, a serious responsibility rests upon the trial judge to make as certain as possible that the testimony is clear and complete. Of course, primary responsibility in this regard rests upon counsel, but a sound discretion to that end rests also upon the judge. The possibility of pure jury speculation in this field is so great that the trial judge must be unusually watchful in respect to it. The criterion by which such intervention must be judged for error is the same as that used in other ...