breathed in smoke and fumes daily (T., pp. 51-52). From the testimony of plaintiff, Amelda Perry and Earl Fowler, the jury could have found that in her emphysematous condition, the assigned work was beyond her physical capacity (T., pp. 180-181, 199). There may have been an economic problem, but notwithstanding the alarming symptoms and obnoxious conditions and her incapacity, there is no evidence that she complained to Dr. Marshall, to the captains, or that she requested defendant to transfer her to work ashore. In our opinion, from these circumstances also, there was an issue of contributory negligence for the jury to consider.
No other objections to the charge were made by plaintiff; thus, reasons 3, 4, 7, 8 and 9 are without merit.
Rule 51, Fed.R.Civ.P.; Dunn v. St. Louis-San Francisco Railway Company, 370 F.2d 681 (10th Cir. 1967); Trent v. Atlantic City Electric Co., 334 F.2d 847, at fn. 4 (3d Cir. 1964).
Plaintiff's reason 2 assigns error in granting a directed verdict on the second count. That count asserts a claim under the Jones Act, De Zon v. Amer. President Lines, 318 U.S. 660, 63 S. Ct. 814, 87 L. Ed. 1065 (1943), and the general maritime law for personal injuries sustained by plaintiff in March, 1961. The Jones Act claim is based solely upon the contention that "notwithstanding defendant's knowledge and notice of her injuries, it breached its obligation to care for plaintiff resulting in aggravation and prolongation of her injuries and disabilities", whereas the unseaworthiness claim has reference to the original accident and injuries which occurred in March, 1961.
There was no evidence that during the three-year period from July 6, 1962 to July 6, 1965, when the complaint was filed, or at any other time, that defendant breached its obligation to provide maintenance and cure for injuries sustained in March, 1961, or if it did, that such breach resulted in aggravation or prolongation of those injuries. For this reason, the directed verdict was proper as to the Jones Act claim, as well as to the maritime claim in that respect.
To plaintiff's claim under the maritime law for the unseaworthiness of the mop-bucket which caused her to fall in March, 1961, the defendant pleaded laches (see Answer to admiralty action; Tr., pretrial conference, August 16, 1967, pp. 6-8, 10-11). On September 11, 1967, plaintiff filed an amendment alleging an excuse for the delay in late filing of her complaint and alleging that no prejudice resulted to the defendant by the delay. The evidence produced in support of this amendment did not reveal any exceptional circumstances which in equity would excuse her delay in not instituting suit within the three-year period provided by the Jones Act.
She testified that she knew of her right to sue the defendant if she wanted to make a claim for injuries (T., p. 106). It appears that she worked during the four years following the accident with some pain and for the latter three years handicapped by emphysema, but her wage loss, if any, caused by the 1961 accident was de minimis (T., p. 46). The only substantial damages she proved from this accident were for pain and suffering. She reported her fall and injuries to defendant, and its physician, Dr. Marshall, found nothing wrong with her. Thus, the delay is inexcusable and gives rise to the presumption of prejudice to the defendant.
There was no evidence that the allegedly defective mop-bucket was in existence. Plaintiff cites Larios v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir. 1963), for the proposition that it was the duty of defendant to come forward with evidence to show it was prejudiced, but in that case the court also said at page 67:
"* * * [There] may be cases where the plaintiff's evidence as to excuse for the delay is so insubstantial that the court need not call on the defendant to come forward with evidence of prejudice."
We think this is such a case. If plaintiff is correct that the issue of laches was for the jury, we think that there was no substantial evidence of excusable delay to submit to that body.
None of the assigned reasons warrant a new trial.
Defendant's Motions for a New Trial
As heretofore stated, plaintiff filed a motion to strike defendant's post-trial motions because untimely served. The record fails to disclose when the defendant's separate motions for a new trial were served upon the plaintiff. They were filed on March 11, 1968. Counsel for plaintiff asserts in his brief that the defendant's motions were received at his office on March 14, 1968, -- 13 days after the judgments were entered on the verdicts. He attached a photocopy of an envelope postmarked March 13, 1968, and bearing defendant's counsel's name and office return address, and asserts that it contained the motions. Service by mail is complete upon mailing. Rule 5(b), Fed.R.Civ.P. Counsel for the defendant asserts in his brief that he "has no clear present recollection of the events of March 11, 1968. * * * [His] impression was that he dropped the copies off at plaintiff's counsel's office * * *, but counsel could be mistaken on this." It would have been more appropriate if affidavits had been filed in support of and in opposition to plaintiff's motion to strike. Rule 59(b), Fed.R.Civ.P., provides:
"A motion for a new trial shall be served not later than 10 days after the entry of the judgment."