to his injury was entitled to recover a verdict diminished by the proportion to which his negligence contributed to his injury. (Charge, pp. 15-17).
At the conclusion of the charge, the court, at defendant's request, instructed the jury that 'if the condition of the guard rail was not a proximate cause of the plaintiff's accident then, of course, even if the guard rail was defective, that would not make the defendant responsible.' (Charge, p. 29). Evidently because of this, plaintiff made an additional request which the court granted in this language: 'If the negligence of the defendant or the unseaworthiness of the vessel played any part, no matter how small, in producing the plaintiff's injuries or aggravating any prior injuries, the defendant is legally responsible for any damage that the plaintiff suffered.' (Charge, p. 32).
When, after all this, plaintiff requested that the residual remains of the definition of proximate cause used at the beginning of the charge should be eliminated, his suggestion was accepted. The court charged the jury that what it had just been told -- i.e., if the negligence of the defendant or the unseaworthiness of the vessel played any part, no matter how small, in producing plaintiff's injury or aggravating any prior injuries -- was to be considered by them 'as the standard in determining whether the defendant is liable, notwithstanding anything that I may have told you earlier in the definition of proximate cause'. (Charge, p. 33).
Of course, plaintiff is entitled to a charge which viewed in its entirety was free from substantial error even though it may appear clear to the court that the jury's decision was not affected in the slightest degree by the terminology of proximate cause. We, therefore, have retraced in detail what was said on the subject of proximate cause and we believe that whatever error may have been present in the original definition of proximate cause was more than eliminated by what followed on the subject of comparative negligence, the responsibility of defendant if its negligence or the unseaworthiness of its vessel contributed in whole or in part or in the slightest manner to the plaintiff's injury, and finally by the express instruction that this latter standard was to be the exclusive guide notwithstanding the original definition of proximate cause.
Accordingly we enter the following
AND NOW, February 15, 1962, plaintiff's motion for a new trial is denied.