The opinion of the court was delivered by: DUSEN
On March 7, 1956, North Atlantic & Gulf Steamship Co. entered into a Time Charter of the S.S. Valborg Nielsen from its Danish owner (D-8). On December 26, 1956, North Atlantic & Gulf Steamship Co., as chartered owner, entered into a Sugar Charter Party with the American Suguar Refining Company (hereinafter called 'refining company') as charterer for a voyage to transport 3200 long tons of raw sugar from Cuba to New York, Philadelphia, Baltimore or Boston (D-4). Paragraph 6 of the agreement provided 'Stevedore for discharging shall be appointed by the Charterer and * * * vessel will allow to the Charterer for discharging' $ 2.09 per long ton. In January 1957, refining company had a contract dated June 30, 1954, with Jarka Corporation of Philadelphia, third- party defendant and hereinafter called 'Jarka' (D-4), under the terms of which Jarka was engaged, 'as an independent contractor, to perform, commencing at such time on or after July 1, 1954 * * * all the duties of a stevedore with respect to the discharge of raw sugar' at your Philadelphia refinery 'from all deep-sea vessels as to which you shall have the right to appoint the stevedore' (paragraph 1 of 6/30/54 contract in D-4). Jarka agreed 'to perform all the work' under the 6/30/54 contract 'in an * * * efficient manner in keeping with the best operating practices * * *' (par. 1). In paragraph 3(d), Jarka agreed to:
'Discharge all of each vessel's sugar cargo from any part of the vessel in which it may be stowed or located, * * *. Bulk sugar shall be so discharged by moving and trimming it into the marine gantry elevators and having it moved thereon to the main sugar conveyor belt on the Refinery pier or by discharging it into such other mechanical bulk sugar discharging equipment as you may provide.'
In January 1957, refinery company provided a marine gantry elevator for the discharging of the bulk sugar from the S.S. Valborg Nielsen at its Philadelphia pier.
On March 14, 1960, judgment was entered on the special verdict of the jury in favor of plaintiff and against defendant in the amount of $ 10,500 and costs (Document No. 45). On March 18, 1960, additional evidence was offered in the third-party action (N.T. 1077 ff.) and an order was entered that the right of indemnity exists in favor of third-party plaintiffs and against third-party defendant and that the former, or either of them, may hereafter have judgment against the latter for any amount they prove has been paid in total or partial satisfaction of the March 14, 1960, judgment (N.T. 1094-5).
See Smith v. Whitmore, 3 Cir., 1959, 270 F.2d 741, 746.
I. Plaintiff's Motion for Judgment N.O.V. (Document No. 43) and To Alter and Amend Judgment under F.R.Civ.P. 59(e), 28 U.S.C.A. (Document No. 54)
Plaintiff contends that it was reversible error for the trial judge to submit the issue of possible contributory negligence to the jury in the form of the following questions 5 and 6 included in the Special Verdict:
'5. Did any negligence of plaintiff contribute to the accident?
'6. If your answer to question 5 is 'yes,' in what percentage did plaintiff's negligence contribute to the accident?
The testimony of the witnesses offered by plaintiff includes evidence from which the jury could have found the plaintiff was contributorily negligent, as indicated below. Since the evidence must be viewed in the light most favorable to the verdict of the jury, these motions must be denied for this reason and those stated below under this heading:
Contention that the testimony of Dr. A. E. Baccini called by third-party defendant presented the only evidence of contributory negligence is rejected.
Plaintiff testified that he had a hard time seeing ahead on either side as he went forward with the bucket rising, since the visibility was very poor (N.T. 170 & 182), and that he started raising the bucket when his payloader started forward toward the gantry box (N.T. 164),
even though he saw large lumps of sugar ahead of him (N.T. 289). If this testimony is accepted, the jury could have found the plaintiff contributorily negligent for starting to raise his bucket so far from the gantry box.
Also, there was testimony that, when the arm of the payloader was level with the steering wheel, there was no obstruction to the vision of the driver to the right or to the left (N.T. 121)
and that plaintiff had the arm or riding gear holding the bucket a little above the steering wheel when the payloader fell on its side (N.T. 126 & 135). If this was true, the ...