failure to provide a safe place to work. That testimony was enough to require denial of a motion under Rule 50(a) for a directed verdict. Whatever other proof was needed to provide the weight of the evidence to satisfy the jury as to defendant's negligence was furnished in the defendant's case by its efforts to prove that Bennett was negligent.
Defendant's alternative motion, for new trial, is based on the contention that the jury's finding of 7 percent contributory negligence was so contrary to the evidence that it shocked the conscience of the court. Defendant bases that on the comment made at side bar after the verdict had been recorded, that the court was 'stumped by the 7 percent figure'. That surprise was attributable more to the odd number than the size. Had the jury expressed its finding in any round number (some multiple of 5), however small, it would not have been surprising. Because of the odd number I thought the jury might mistakenly have written '7' when it intended '70', but when the verdict in the amount of $ 53,010 (representing diminution of the gross amount of the damages by the 7 percent contributory negligence) was announced to the jury, there was not the slightest sign of surprise or disagreement on the part of any member of the jury. Defendant had full opportunity to seek a poll of the jury but did not do so. I am satisfied that 7 percent is what the jury intended as plaintiff's degree of fault contributing to his injury.
Accepting as a fact (as I do) that the jury intended its finding of 7 percent, that finding does not shock me even though I might personally disagree with it. There is support in this record for a finding of no negligence on Bennett's part. The jury could have found, from the testimony of Bennett and his coworkers, that the rigging which Bennett used here was a type generally used by longshoremen; that in so far as reasonable and prudent longshoremen were concerned, the method used was safe and proper; that Bennett exercised due care in standing where he did when he gave the signals for the move; and that Bennett acted as a reasonable and prudent longshore gang foreman in all that he did.
If the jury could properly have found no negligence on Bennett's part, then in my opinion, a finding of any degree of negligence on his part, however small, is supportable. The fact that he created the condition does not render the finding of so small a degree of fault on his part inconsistent with the finding that defendant was negligent, cf. Street v. Isthmian Lines, Inc., 313 F.2d 35 (2nd Cir. 1963). The jury could have found, particularly from defendant's testimony, that whereas Bennett did not know and should not have known of the danger of the type rigging which he used, the chief mate did know or should have known; that the chief mate had the authority to stop operations to prevent the use of such dangerous rigging, and that he was negligent in failing to do so.
The negligence found against Bennett could very well have been based not on the type of rigging he employed but on his failure to stand in a safe place at the time he gave the signal to take the strain on the load, and that his standing where he did contributed only slightly to the happening of the accident. Such a view of the jury's answers to interrogatories would render them completely consistent and plaintiff is entitled to that view. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., et al., 369 U.S. 355, 82 S. Ct. 780, 7 L. Ed. 2d 798 (1962).
The issues in this case were submitted to the jury under instructions to which no exceptions were taken by defendant. The issues were resolved by the jury with special findings. Those findings do not shock my conscience. Absent a shocked conscience, I have no desire to invade the jury's fact finding province, much less the power to do so. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963).
Defendant's motions will be denied.
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