Biggs, Chief Judge, and Kalodner and Smith, Circuit Judges.
KALODNER, Chief Judge.*fn**
In the instant case the plaintiff, a longshoreman, sued the defendant J. Lauritzen, owner of the S.S. Gerda-Dan, in a maritime action for injuries sustained when he was assaulted on June 16, 1959, by a fellow longshoreman with a cargo hook while they were discharging the vessel's cargo. The Complaint alleged unseaworthiness of the vessel in that the plaintiff's assailant was not equal in temperament and disposition to the ordinary men of his calling. The jury returned a verdict of $2,000 in favor of the plaintiff against the defendant Lauritzen. It also returned a verdict of $2,000 against the third-party defendant Jarka Corporation of Philadelphia, a stevedore employer of the plaintiff and his assailant. Jarka had been joined by Lauritzen as third-party defendant on an indemnity claim.
The plaintiff appealed when the District Court denied his motion for a new trial which was based on alleged errors in the charge to the jury. Jarka has not appealed.
The plaintiff here asks a new trial limited to the issue of damages, or in the alternative, a new trial on all issues.
He urges, inter alia, that the trial judge erred in charging the jury that (1) "if the assault was justified in self-defense * * * the vessel was not unseaworthy"; (2) "if the assault was * * * sufficiently provoked, the vessel was not unseaworthy"; and (3) "I think you should consider that they [plaintiff and assailant] were both using the [cargo] hook, admittedly everyday tools of their trade, and there is no testimony that Frank Smith [the assailant] went to get the hook to beat up the plaintiff. In other words, what I am trying to say is that I think you should take into consideration the fact that when this fight broke out they were both using hooks".
It is necessary to consider the evidence adduced at the trial before proceeding to a discussion of the plaintiff's stated contentions.
The record discloses that on the day of the assault the plaintiff, ("Arthur"), and his alleged assailant Frank Smith, ("Frank"), were unloading bags of sugar from the hold of the S.S. Gerda-Dan, and that some time after they commenced to perform their work, Frank attacked Arthur from behind with a cargo hook or hooks, inflicting severe head injuries. The incidents relating to the attack were variously described by the witnesses at the trial.
James Rich, a rigger and a fellow long-shoreman, testified that he had observed the action from above; Arthur and Frank had gotten into a "rumble"; and that "Frank had took the hook and hit Arthur in the head three or four times." Asked on direct examination what he meant by "rumble", Rich answered, "I heard the talking. I heard they were talking. Then I looked down the hold. I was standing right over the hatch. * * * I heard a noise down in the hatch. I heard a noise and then I look around and that time I saw Frank hitting Arthur in the head with the hook, so that must be what I hear him was talking about. * * * Arthur was bent over. He had both of his hands sticked in a bag to raise it up to put in the draft." And on cross-examination in response to the question, "And by rumble do you mean quarrel, that Frank and Arthur were quarreling?" he testified, "No they wasn't quarreling. I heard the talking and I looked around and Frank was hitting Arthur in the head with the hook. Whether it was Frank talking or Arthur talking, I didn't heard Arthur say anything but I know Frank's voice because I worked with him." And to the further question on cross-examination, "And by rumble you mean you heard Arthur and Frank arguing?" he replied, "No, no. I didn't say Arthur and Frank. I said I heard Frank voice"; and to the question, "Did you hear people arguing?" he responded, "Oh, I wouldn't say they was arguing because Arthur had both his hooks in the bag to lift it up to put it in the sling; and then when I looked down Frank was hitting Arthur in the head with the hook."
Leroy Stevens, another fellow long-shoreman, a defense witness, who apparently saw the entire occurrence, testified as follows:
"Q. Now you heard them arguing, didn't you?
"Q. Did you see any motions made one to the other?
"A. Well, Arthur hit Frank.
"A. Yes. * * * And Frank didn't say anything, but he waited until Arthur bend to sweep the bag, and then he took his hook and he hit him aside the head. * * *"
And to the question, "Did those men [the men working in the hold, including Arthur and Frank] have any tools with them at the time?" he replied, "They all had two hooks, all but the hook runner."
On cross-examination Stevens again described the incidents leading up to the attack:
"By Mr. Dorfman [Plaintiff's counsel]:
"Q. I am just interested in learning what you saw the first time you looked into the hold.
"A. When I looked into the hold, they were arguing.
"A. Yes. That's what started it.
"Q. Tell us what happened as they were arguing.
"A. They were arguing about the work.
"Q. What happened after the argument? Was it an argument of words?
"A. Argument of words, and then it turned ...