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October 14, 1965


The opinion of the court was delivered by: BODY

BODY, District Judge.

 The complaint in this action was filed on June 13, 1961 arising out of personal injuries to the plaintiff, Anthony Boldurian, while he was engaged in the performance of his duties in discharging cargo aboard the "Krageholm" on December 4, 1959.

 Plaintiff, an employee of J. A. McCarthy, Inc., brought suit against the shipowner defendant, Aì Svenska Amerika Linien, basing his claims upon unseaworthiness and negligence. The shipowner joined the stevedoring company, J. A. McCarthy, Inc., as third-party defendant claiming indemnity.

 The cause was tried before this Court and a jury on March 9, 1965 which resulted in the jury finding damages in favor of the plaintiff in the amount of $38,055.40. On March 25, 1965 this Court entered judgment and verdict upon a special verdict and awarded plaintiff damages in the amount of the verdict with costs, and entered judgment in favor of the shipowner and against J. A. McCarthy, Inc. to include amounts paid by defendant to plaintiff and expenses, fees and costs, including attorney's fees incurred by defendant.

 The Court now has before it the motions of J. A. McCarthy, Inc. for a new trial or for judgment n.o.v., and the motion of the defendant, Aì Svenska Amerika Linien, for a new trial limited to the issue of damages.

 At the time of the accident plaintiff was forty-eight years of age and was employed as a longshoreman in the capacity of a forklift operator. The longshoremen, including the plaintiff, were unloading bundles of hardwood which was designated as wallboard. The wallboard bundles were approximately one (1) foot to one and one-half (1 1/2) feet thick, four (4) feet wide, and eight (8) feet in length, with the weight estimated by various witnesses ranging from one thousand (1,000) to two thousand (2,000) pounds per bundle. (N.T. 215) Plaintiff's duties consisted of lifting these bundles of wallboard with his forklift truck and placing them in such a position in the hold that they could be unloaded from the ship. Plaintiff had lifted two bundles and began backing the forklift truck down an incline of between five (5) and ten (10) degrees when the forklift truck suddenly tilted over, fell, and pinned plaintiff's foot beneath the load. (N.T. 28)

 It appears from the testimony of Edward Hicks, a fellow employee of plaintiff, that as the forklift truck backed up, it struck and tilted over a block of wood three (3) feet long, four (4) to six (6) inches wide, and about two (2) inches thick which was nailed to the deck and was the same color as the deck. (N.T. 27) Mr. Hicks testified that the board could not be seen prior to the accident since the bottom bundle had been removed; and furthermore, because of the low clearance of the forklift truck, the lighting conditions and the color of the board. (N.T. 120) Both Hicks and the plaintiff testified that they did not know the board was there. (N.T. 120-124, 176)

 Having set forth the facts relevant to the actual occurrence of the accident, we can now review the motion of J. A. McCarthy, Inc. for new trial and judgment notwithstanding the verdict.



 The third-party defendant's motion is based upon three main grounds which we will examine in turn.

  First of all, J. A. McCarthy, Inc. argues that the Court erred in refusing to charge the jury as requested in its point No. 6 submitted to the Court. *fn1" The thrust of this contention is that the only real grounds urged by the plaintiff for finding unseaworthiness and negligence on the part of the shipowner was a hazardous condition created by the board, described previously, on which the forklift truck apparently tilted and fell. Therefore, the jury had to properly understand the duty of the stevedoring company with regard to the board in order for them to return a correct finding on indemnity. McCarthy's proposed point No. 6 would have been proper if the only evidence of negligence were what they contend, that is, the existence of the board. However, from a careful review of the entire record, it is clear that the Court did not commit reversible error in refusing point No. 6. In fact, reversible error would have been committed if the Court had included that point in its jury charge. This is so because, on the issue of indemnity, the contentions of the shipowner included improper and unsafe operation and procedure by the stevedore, as well as the duty to eliminate risks of injury, inadequate equipment, inadequate supervision, lack of illumination and negligence of fellow longshoremen. In view of this, the Court's charge which included these other contentions was proper. (Charge, 53-55) For these reasons, McCarthy's argument as to its proposed point No. 6 must be rejected.

 Secondly, the stevedoring company contends that the Court erred in submitting to the jury interrogatory No. 4 *fn2" instead of its proposed interrogatories Nos. 4 and 5, *fn3" and in affirming the shipowner's points for charge. McCarthy argues that the jury was mislead into believing that only the shipowner's points for charge Nos. 6 and 7 were applicable to the third-party indemnity action. (Charge, 41) Furthermore, they allege that points Nos. 6 and 7 were improper in that they did not refer to the contract between the shipowner and stevedore. We conclude that the jury was fully and properly instructed on the indemnity issue and was in no way mislead by the Court's charge or interrogatories. The law is settled that recovery by indemnity is not limited to the particular provisions of the contract between the shipowner and stevedoring company since the contract includes the implied warranty to perform services in a safe, proper and workmanlike manner. [ Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1955). See also, Hodgson v. Lloyd Brasileiro Patrimonio Nacional, 294 F.2d 32 (3d Cir.), cert. denied, 369 U.S. 848, 82 S. Ct. 931, 8 L. Ed. 2d 8 (1962).] It is our opinion, therefore, that J. A. McCarthy's contention that shipowner's points Nos. 6 and 7 as adopted by the Court were improper, is without merit. We have carefully reviewed the record and briefs with reference to McCarthy's contention that the Court should have used its proposed interrogatories Nos. 4 and 5 instead of No. 4 and have concluded that no reversible error was committed on any grounds suggested by McCarthy. It is important to note also that no objection or exception to the Court's interrogatories was taken by counsel.

 J. A. McCarthy's third main ground in support of its motion for new trial and judgment n.o.v. is that the verdict in favor of the plaintiff was grossly excessive and against the weight of the evidence on damages. Since this contention is, in essence, the same as that urged by the shipowner, Aì Svenska, in its motion for a partial new trial on the issue of damages, it will be treated as though part of that latter motion.



 This motion by the shipowner stems from its appraisal of the exact nature of the accident and the severity of the plaintiff's injuries, including plaintiff's medical history and work record following the accident. Defendant claims it is clear from the foregoing aspects of the case that the jury returned a verdict which was grossly excessive, shocking and apparently a result of sympathy. We now turn to the facts which bear upon the damage issue.

 After the accident plaintiff left the ship under his own power and was taken to St. Luke's Hospital by ambulance where X-rays were taken of the skull and right foot. (N.T. 149-151) No X-rays of the back were revealed by the hospital records although plaintiff claims such X-rays were taken. (N.T. 181) Although plaintiff was instructed to return to the clinic or a doctor for further treatment, he did not return. (N.T. 151) He stated that he had treated himself at home. It is important to note that plaintiff never received medical treatment from any physician for the alleged ailments of his back until approximately eighteen months had passed since the date of the accident (December 4, 1959). Furthermore, no compensation was ever received, claimed or sought from the employer. And although plaintiff claimed he had a fear of doctors, the record indicates that he did avail himself of the medical facilities furnished for all longshoremen at St. Luke's Clinic at Pier 80 for knee injuries received in 1960 and 1963. (N.T. 258-259) Plaintiff reported for work on Monday, December 7, 1959, three days after the accident, although no work was available on that day. (N.T. 181) He did work on Tuesday, December 8, 1959 and Thursday, December 10, 1959. The following week he worked every day including Saturday doing his normal work. (N.T. 182) Reviewing plaintiff's work record we find (N.T. 183-193) the following: 4-1-59 to 9-30-59 662 hours 10-1-59 to 3-31-60 568 hours (accident 12-4-59) 4-1-60 to 9-30-60 583 1/2 hours 10-1-60 to 3-31-61 275 hours 4-1-61 to 9-30-61 270 1/2 hours 10-1-61 to 3-31-62 526 hours 4-1-62 to 9-30-62 422 hours 10-1-62 to 3-31-63 590 1/2 hours 4-1-63 to 9-30-63 622 3/4 hours 10-1-63 to 3-31-64 580 hours 4-10-64 to 9-30-64 568 hours


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