The opinion of the court was delivered by: GOURLEY
In this personal injury action based upon the Jones Act, the jury rendered a verdict in favor of the seaman in the amount of $ 48,000, 46 U.S.C.A. § 688.
The sole issue before the Court relates to defendant's motion for judgment N.O.V. and/or new trial based upon the following contentions:
'1. There is no evidence to support jury's finding that the plaintiff was a seaman.
'2. Negligence does not exist in the record upon which to predicate a verdict in favor of the plaintiff.
'3. The Court committee prejudicial error in divers remarks to the jury.'
Plaintiff was employed as a bargeman by the defendant. While he was engaged in maneuvering a loaded coal barge toward the shore, the wire cable placed on the barge broke, striking him and catapulting him into the air, causing him to be thrown into the coal barge and resulting in most substantial injuries.
The plaintiff's duties as a bargeman included the maneuvering of barges loaded with coal which were delivered by tow boats on the Ohio River to the defendant's dock facilities at Conway, Pennsylvania. Such maneuvering consisted of tying up the delivered barges by means of rope to other barges in a designated area, inspecting barges for leaks, placing navigation lines on them, selecting out of many loaded barges one barge at a time for emptying by a shore-mounted crane.
Plaintiff was then required to unlash the barge, attach a tow line and float it down the river to a position where it could be unloaded.
Defendant advances the thesis that, although the plaintiff may have met the legal standards of a seaman, in that the ship with which he was connected at the time of the accident was in navigation and that he was aboard primarily in aid of navigation, nevertheless he did not meet the additional requirement that there be a more or less permanent connection with the ship. Zientek v. Reading Company, 220 F.2d 183, 3rd Cir.
The Court submitted to the jury the issue of whether plaintiff was a seaman as a question of fact based upon a most detailed charge as to the essential requisites for an employee to be deemed a seaman, and the jury, by its verdict in favor of the plaintiff, concluded that the facts of the case justified the finding that plaintiff was a seaman at the time of the accident.
The question as to whether an individual is a 'seaman' under the Jones Act is a question of fact depending largely on the facts of the particular case and, at times, on the activity in which such individual was engaged at the time of the injury. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 131, 80 S. Ct. 247, 4 L. Ed. 2d 191; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S. Ct. 687, 2 L. Ed. 2d 737; Butler v. Whiteman, 356 U.S. 271, 78 S. Ct. 734, 2 L. Ed. 2d 754; Senko v. La Crosse Dredging Corp., 352 U.S. 370, 77 S. Ct. 415, 1 L.ed.2d 404.
The term 'vessel' includes a barge without motive power of its own, Berwind-White Coal v. Rothensies, 137 F.2d 60, 62, 3rd Cir.; Wilkes v. Mississippi River Sand, etc., 202 F.2d 383, 6th Cir.; Norton v. Warner Co., 321 U.S. 565, 571, 64 S. Ct. 747, 88 L. Ed. 430. A crew may consist of one man, ...