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LOWRY v. A/S D/S SVENDBORG

June 15, 1967

Lonnie W. LOWRY, Sr.
v.
A/S D/S SVENDBORG AND D/S (af) 1912 A/S v. UNIVERSAL TERMINAL & STEVEDORING CORPORATION



The opinion of the court was delivered by: VAN DUSEN

 VAN DUSEN, District Judge.

 This case is before the court on the plaintiff's Motion For A New Trial (Document 42), filed after the entry of a judgment in favor of the defendant upon the special verdict of the jury. *fn1"

 On the morning of November 5, 1962, plaintiff longshoreman was employed as a holdman in the loading of sisal hemp aboard the defendant's vessel, the S.S. "Maren Maersk," while the vessel was in the Delaware River at Pier 78, South Wharves, Philadelphia. After removing the tarpaulin and some hatchboards covering the after end of the main deck hatch opening to the No. 3 hold, the holdmen in the gang in which plaintiff was working began to descend into the hold. This was accomplished by means of a ladder, the uppermost portion of which consisted of three footholds in the after end of the hatch coaming. On the outside of the coaming, at each side of a rod used as a step by persons climbing over the top of the coaming from the deck, there was a group of guy ropes extending upward on an angle of approximately 70 degrees, so that a truncated "V" was formed. The plaintiff was the third man in his gang to go down the ladder on the morning of the accident (N.T. 36, 52, 79, 118). He testified that he put his right leg over the coaming and inserted his right foot in the top foothold. He grasped the top of the coaming with both hands and started to swing his left leg over. As he was doing this, his left foot struck the group of guy ropes on his left, causing him to lose his balance and fall into the hold (N.T. 121-2).

 1. Contention that the trial judge erred in instructing the jury that they might answer questions 1 and 2 "no" on the basis of a finding that plaintiff was solely negligent or contributorily negligent up to 100%, since there was no evidence of negligence on the part of the plaintiff.

 Plaintiff bases his first reason for new trial, at page 7 of his brief (Document 49), on the following instructions of the trial judge:

 
"As between the plaintiff and the shipowner, the shipowner cannot relieve himself of this responsibility for being free of negligence by delegating the job of unloading the cargo to the stevedoring company. The shipowner is still responsible if there was negligence on its part. Of course, if you find that the sole negligence was that of the plaintiff, then you would answer this question [#2] 'No.'" (N.T. 403)
 
"'D-4. If you find that plaintiff's injuries were substantially caused solely by his own negligence, your verdict will be for the shipowner.'
 
"And of course, then you would answer questions 1 and 2 'No.' Obviously, if you find that the plaintiff was careless, that he swung his leg over there too fast, and that caused him to fall, that because all these people went down without incident, and because you accept Mr. Keeler's testimony as to the impossibility of his own story of how it happened, and so on, then there would be no fault on the part of the shipowner." (N.T. 407-8)
 
"And in answering Question 5, you have to consider the percentage which the plaintiff's negligence bore to the total fault causing the accident. Of course, if the plaintiff was the only one at fault, then it would be one hundred per cent." (N.T. 423)
 
"Supposing you only found one dollar in answer to Question 3, one dollar of damage, and supposing you put in here, say, one per cent, just to take a ridiculously low figure." (N.T. 424) *fn2"

 In order to support this contention, plaintiff must show: (1) that there was insufficient evidence of the plaintiff's contributory negligence to warrant submission of that issue to the jury, and (2) that even though the jury did not answer the interrogatory on contributory negligence (No. 4), plaintiff was somehow prejudiced by the instructions on that issue. A showing that item (1) is true does not entitle plaintiff to a new trial in the absence of a showing that item (2) is also true. Because it has been determined that plaintiff could have suffered no prejudice from the challenged instructions, it is unnecessary to rule on the sufficiency of the evidence of contributory negligence. *fn3"

 The instructions upon which plaintiff relies to show that the contributory negligence instructions prejudiced him are those in which it is stated that the jury would answer questions 1 and 2 "no" if they found that the plaintiff's own negligence was the sole cause of the accident (N.T. 403, 407-8). However, a finding that the plaintiff's negligence was the sole, or exclusive, cause of his injury necessarily includes a finding that no other negligence (or unseaworthiness) contributed to it. *fn4" Properly read, the challenged instructions suggest a finding in favor of the defendant if the jury should find that the accident was not caused by any negligence of the defendant or unseaworthiness of its vessel, but instead was caused by plaintiff's own negligence.

 These instructions (at N.T. 403, 407-8) occurred during the portion of the charge which dealt exhaustively with what would constitute negligence and causation on the part of the defendant. *fn5" A careful review of the entire charge reveals that the jury was made fully aware of the factors to be considered in determining whether the ...


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