The opinion of the court was delivered by: KRAFT
This action for damages under the Jones Act is before us on defendant's post-trial motions following a special verdict of a jury for the plaintiff.
The evidence was sufficient to establish the following: On November 5, 1958, plaintiff was employed as an electrician aboard the S.S. American Builder, a vessel owned and operated by the defendant, and then docked in the Port of London. Plaintiff awoke about 2 o'clock that morning with a sharp pain in his arm. He went to sleep again, and some time later awoke with a sharp pain in his chest which 'shot across' his shoulder and all the way down his arm. On his way to the latrine, plaintiff had to stop and rest and, with the pain, he broke out in a sweat and became very weak. After stopping several times for rest, he got back to his bunk where he remained the rest of the night. Plaintiff awoke in the morning with similar pains, but arose, washed and went to the messroom.
Plaintiff began work at 8 o'clock, but felt himself getting weaker and his arm and chest felt sore. He complained to the first engineer who said 'take it easy for the day, go to bed'. Plaintiff then called to Pomerleau, the ship's purser, who also served as pharmacist's mate, and asked if he had any medicine for a sore chest and pain in the arm. At Pomerleau's direction, plaintiff went to the purser's office which was one deck above. Plaintiff told Pomerleau what he had experienced during the night, that his arm and chest were still sore and that he felt 'awful' weak. Pomerleau instructed plaintiff to change his clothes and come back to his office.
On plaintiff's return, Pomerleau took him on deck and gave him directions to a clinic, which Pomerleau stated wasn't 'very far'. Pomerleau also handed plaintiff a letter addressed to the medical officer of the Albert Dock Hospital, to which Pomerleau had previously referred as the 'clinic'. The letter requested that plaintiff be examined and treated, and stated in part 'He complains this morning of numbness left arm with pain in chest. During the night he stated pain quite severe with profuse sweating, etc. Possible cardiac complications?'
It is not disputed that plaintiff suffered a heart attack in the early morning of November 5, 1958. The medical testimony, on both sides, as we understand it, indicates that plaintiff sustained a myocardial infarct caused by an occlusion or stoppage in the coronary arteries.
Plaintiff makes no claim that the heart attack itself was caused by any act or omission on defendant's part. He does contend, however, that the purser was negligent in permitting plaintiff to move about the ship and to walk to the Albert Dock Hospital after the purser knew, or reasonably should have known, of plaintiff's heart condition, and that this negligence aggravated the condition which resulted from the heart attack and caused plaintiff's present condition and a shortening of his life expectancy.
Defendant's first complaint is that the trial Judge erred in submitting to the jury the issue of plaintiff's claim for damages for diminution of his life expectancy.
Dr. Gelfand, plaintiff's medical witness, testified that plaintiff 'had a heart attack when he awakened'; that in view of plaintiff's prior medical history, 'the reasonable period of disability and convalescence in a case like Mr. Downie would be from three to four months. In other words, we would expect Mr. Downie to make a complete recovery within three to four months and to be able to return to his former work.' He stated that plaintiff's heart muscle was damaged irreparably by his walk to the clinic during a very acute phase of his heart attack. He testified that plaintiff's life expectancy, already reduced to 70 per cent of normal by the heart attack itself, was further reduced to 20 to 30 per cent of that 70 per cent by the physical exertion attending plaintiff's walk to the hospital.
Dr. Soloff, defendant's medical witness, expressed the opinion that plaintiff's walk to the hospital had no aggravating effect on his heart attack, and no bearing on plaintiff's present condition or life expectancy. He testified that 'it just doesn't seem likely to me that (the walk) is of any real significance at all'.
The trial Judge submitted the issue to the jury with appropriate instructions. The jury, in answer to an interrogatory, stated that $ 25,000 of the total damages of $ 86,900 awarded plaintiff represented compensation for shortening of plaintiff's life expectancy.
Defendant contends that, under the law, plaintiff may not recover for shortening of life expectancy as a separate element of damages. After extended research and very careful consideration, we think defendant's contention is sound and must be sustained.
The Jones Act provides that any seaman who shall suffer personal injury in the course of his employment may maintain an action for damages at law '* * * and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply * * *.' Section 1 of the Federal Employers' Liability Act, 45 U.S.C. § 51, states that a common carrier by railroad '* * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * *.' In Dow v. Carnegie-Illinois Steel Corporation, 165 F.2d 777, p. 779 (3rd Cir. 1948), a Jones Act case, the Court held:
'In proceedings brought under the Federal Employers' Liability Act the rights and obligations of the parties depend on the Act and the applicable principles of common law. New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367, 38 S. Ct. 535, 62 L. Ed. 1167. It following, therefore, that ...