jury found that the ship was both unseaworthy and negligent and awarded damages in the sum of $ 90,000.
As to the third-party action, the trial judge attempted to follow the view of the United States Court of Appeals for the Third Circuit as expressed in the case of Beard v. Ellerman Lines, Ltd. v. Atlantic and Gulf Stevedores, Inc., 3 Cir., 1961, 289 F.2d 201, certiorari granted 82 S. Ct. 122, by submitting to the jury two interrogatories.
The jury found that the stevedoring company did not know, nor should it have known, of any unsafe condition existing on the lower 'tween deck. It further specifically found that the stevedoring company did not carry on its duties in a place where it was unsafe to work because of the condition existing on the lower 'tween deck at the point where the accident occurred.
The trial judge, in instructing the jury with regard to these interrogatories, stated:
'Now those interrogatories are addressed to the question as to whether or not there was a situation of danger, whether there was a hazardous situation, there where that ladder met the tween deck; and those questions are directed to the fact that if the stevedoring company knew that, when they started work, and nevertheless continued work there throughout the day, under those circumstances they could be liable over to the ship. The ultimate question as to determining that liability as a matter of law will be left to the court. What the court decides will depend on how you answer those last two questions.' NT 239-240.
As has been stated, the jury found that the longshoremen did not know, nor should they have known, of any unsafe condition existing on the lower 'tween deck. We think that this finding was supported by the evidence. While it is indisputable that the longshoremen knew that the cargo on the 'tween deck was stowed too close to the edge of the coaming, the men who witnessed the plaintiff's fall attributed his slipping not to the cargo stowage, but to paper which had apparently blown into the space between the coaming and the stow. There is ample testimony in the record to the effect that the longshoremen did not notice this paper after they had swept up the lower 'tween deck early that morning, as they had had no further occasion to walk on that deck.
The jury also found that the longshoremen did not carry on their duties in an unsafe place to work. Defendant contends that this finding is contradictory to the finding that the ship was unseaworthy and negligent, since the latter finding must have been based upon the jury's evaluation of the 'tween deck as an unsafe place. Relying upon the Beard case, supra, the defendant contends that, as a matter of law, the longshoremen must be adjudged to have carried on their work in an unsafe place to work, and that therefore the third-party defendant must be liable to the defendant.
As the record shows, the only condition alleged by plaintiff to have amounted to unseaworthiness, and/or an unsafe place to work, was the condition on the lower 'tween deck. But it must be remembered that the longshoremen were carrying on their unloading operation in the lower hold. No one had been on the lower 'tween deck since the men swept it up that morning. No one had to stand or walk on it as a part of the unloading operation. Thus, even though the jury found the ship unseaworthy and negligent because of the condition on the lower 'tween deck, it does not necessarily follow (in our opinion) that the longshoremen handled the cargo in an unsafe place to work.
If plaintiff had been injured when walking across the deck to the washroom and slipping on some jello on the deck, it would seem rather strained to hold, as a matter of law, that the longshoremen were carrying on their work in the lower hold in an unsafe place to work. Granted, the case at bar is not as clear as our hypothetical case' but we do not interpret the Beard case, supra, as requiring the court to find, as a matter of law, that the longshoremen carried on their duties in an unsafe place to work in every case in which a jury has found in the plaintiff's case that the ship was unseaworthy and negligent because of some condition existing aboard. For these reasons, we think that the defendant's motions with regard to the third-party action must be denied.
With regard to the action of the plaintiff against the defendant, we think only one point merits discussion; that is, the defendant's argument that the verdict was excessive.
Unfortunately, although the defendant did file its motion for a new trial within ten days after the entry of judgment, it did not file the ground of excessiveness of the verdict as a reason for granting a new trial until after the ten-day period had elapsed.
There is a conflict among the authorities as to whether Rule 59(b) prohibits the District Court from considering an additional ground for a new trial or an amendment to a motion for a new trial when filed after the ten-day period has run even though the principal motion was filed within that period.
However, the United States Court of Appeals for the Third Circuit in the case of Russell v. Monongahela Railway Co., 3 Cir., 1958, 262 F.2d 349, 354, has indicated its approval of the majority view; namely, that the District Court may not consider such additional ground.
Defendant relies upon an opinion by Senior Judge Welsh
in which he held that under exceptional circumstances, grounds for a new trial advanced after the expiration of the ten-day period could be considered by the court under the provisions of Rule 60(b). We think that no such exceptional circumstances are presented by the case at bar and that Rule 60(b) is not applicable. We conclude that we are bound by the view expressed by the United Stated Court of Appeals for the Third Circuit in the Russell case, supra, and therefore we do not reach the merits of the contention that the verdict was excessive.
Had this reason been assigned at the proper time, however, we would still not be persuaded to set aside or reduce this verdict, if it were in our power to do so. As was stated to counsel, we think this was a high verdict but it is not one that shocks the conscience of the court, nor one that moves us to take any extreme action to reduce it by remittitur, or to grant a new trial on that ground alone. We are of the opinion that the great weight of authority is that unless the verdict shocks the conscience of the court, the province of the jury should not be invaded in this regard.
In all other regards, we think the defendant's motions in the original action are without merit and must be denied.