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RALPH v. HARRY ZUBIK CO.

January 10, 1963

James W. RALPH, Plaintiff,
v.
HARRY ZUBIK COMPANY, Inc., Defendant



The opinion of the court was delivered by: ROSENBERG

The plaintiff seaman brought an action under the Jones Act and separate action in admiralty for maintenance and cure. The action under the Jones Act was tried to a jury and it rendered a verdict against the defendant and in favor of the plaintiff for the sum of $ 22,000.00. The defendant filed a motion for a new trial and a motion to have the judgment and verdict set aside and judgment entered in accordance with defendant's motion for a directed verdict.

To support the motion for a new trial, the defendant filed 21 reasons, and in support of the motion to have the verdict and judgment set aside and judgment entered in accordance with the defendent'smotion for a directed verdict, there were four reasons subscribed. Most of the reasons are re-statements of the same arguments and are summarized as follows:

 1. The jury should have been permitted a view of the M/V Prosperity upon which boat the plaintiff was injured and for which the plaintiff made claim for damages, or in lieu of a view by the jury that the capstan, about which the involved cable had been attached, should have been permitted to be brought into court as evidence.

 2. The defendant was deprived of his right to produce impeaching witnesses.

 3. The jury was not given information or instruction in regards to the plea of surprise by the plaintiff as it related to one of his witnesses, and the weight which the jury might give such a witness's testimony where a surprise had been pleaded.

 4. The jury was given erroneous instructions so as to permit them to speculate on the facts and damages. The jury was given a mis-statement of facts, which the Court refused to correct when called to its attention.

 The plaintiff seaman was employed by Harry Zubik Company Inc., on the M/V Prosperity as a deckhand. The vessel, itself, was leased by the defendant from Harry Zubik, individually. On September 17th, 1960, the plaintiff was securing a slack line on a capstan in the process of facing up a tow of barges, or in other words was facing the boat up to a barge. In the course of this process, and while the boat was standing still, the plaintiff was winding up the slack rope when the captain of the boat, as its pilot, permitted the boat to back or drift back, or as it was stated in the evidence, the captain 'kicked back' on the boat. During this time, the handle of the capstan with which the plaintiff had been working and which is about two inches high and four feet long with an elbow on the end and which end of the handle stuck out of the capstan, jerked back as the boat backed up, and hit the plaintiff on the arm. At the time of the blow, the plaintiff observed a numbness -- a shock and received a gash about one inch long on his arm. The plaintiff reported immediately afterwards to Captain Grimm of the injury to his arm, and several days later to Harry Zubik.

 The plaintiff was admitted to the Public Health Service in Pittsburgh ten or twelve days after the accident in question, and to the Marine Hospital at Staten Island, New York in November, 1960, for a period of approximately two weeks. He was seen by Dr. M. S. DeRoy on May 24, 1962 and on June 18, 1962. Dr. DeRoy testified as a medical witness in favor of the plaintiff at the trial of this case. He testified that the plaintiff had suffered a partial disability because of an injury to the ulnar nerve; that this was due to the fact that the plaintiff had suffered a blow, contusion or concussion of this nerve, which brought about a thickening area over this nerve indicating a reaction of fibrous tissue found where the injury to the nerve occurred. He corroborated the complaint of the plaintiff that there was a loss of strength in the right arm and hand and that the right hand lacked the power of gripping. He gave it as his opinion that the plaintiff could do any type of work which would not necessitate a strong hold with the right hand. The doctor testified that this plaintiff could undergo an operation without any certainty of a remedy to the injured nerve. The doctor corroborated the plaintiff in all other respects as to the evidence of partial disability.

 Defendant's second contention is equally without merit, that he should have been allowed to produce impeachment testimony in regards to the non-occurrence of the accident on the theory that the plaintiff had left defendant's employ because he wanted to secure employment with the Merchant Marine. This matter was within the knowledge of the defendant August 3, 1961 when it filed its pretrial statement. *fn2"

 Our Pretrial Procedure Rule 5, II, G, provides as follows:

 'Failure to make a full disclosure of evidence during the pretrial conference will result in exclusion of that evidence at that trial. The only exception will be * * * (2) impeaching matters * * *. Insofar as impeaching * * * matter is known at the time of the pre-trial, it must be disclosed to the Court alone, for determination by the Court as to the requirement of disclosure.'

 Accordingly, since the defendant knew when it filed its pretrial statement, that this evidence might be in order either as defense or impeachment matter, it was its duty to disclose the names of these witnesses with its other witnesses at or before the pretrial, or alternatively to inform the Court of possible impeachment evidence. While the defendant listed its witnesses at or before pretrial proceedings, nowhere and at no time did it list the names or indicate that there were other witnesses or impeachment evidence. The defendant cannot assert that he did not know until the time of trial what his main defense was, i.e. that the plaintiff was quitting to go to work for the Merchant Marine and not because he was injured, and that, therefore, it could not produce witnesses to sustain its own defense until it was actually brought out in the plaintiff's case by defendant's cross-examination, and that the matter which was originally the defense, then became a matter of impeachment for which special witnesses were needed. Because these witnesses were held back by the defendant as it appeared at the time of trial for advantage purposes, it was properly disallowed. There is no reason why procedural rules should not be respected, and this Court will require compliance therewith as justice requires.

 As for the defendant's third contention, that the jury was not given proper instructions regarding the plea of surprise raised by the plaintiff with his witness, Wissenbach, it is amply indicated that the jury was left in no doubt, at the time, of the meaning of the circumstances by which a witness called by the plaintiff had surprised the plaintiff's counsel and that the court permitted his cross-examination. This was done openly before the jury and the jury could not have failed the understand its significance. This Court further gave full and explicit instructions on ...


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