The opinion of the court was delivered by: LUONGO
Marion Domeracki, a longshoreman, was seriously injured while loading stores aboard the defendant's vessel, the SS ESSO LIMA. In this action, Domeracki contended that his injuries were caused by the unseaworthiness of the vessel and the defendant's negligence in failing to maintain a reasonably safe place to work. The court submitted eight interrogatories to the jury for its consideration. Pursuant to the jury's answers thereto,
I directed a verdict for the plaintiff and entered judgment accordingly on May 22, 1969.
Presently before me are defendant's motions under Rule 50, F.R. Civ. P., for judgment notwithstanding the verdict, or, in the alternative, for a new trial. In support of these motions, defendant has set forth the following grounds: (1) the verdict was contrary to the evidence and against the weight of the evidence; (2) the verdict was excessive and given under the influence of passion and prejudice; (3) the jury should have been withdrawn when plaintiff's counsel improperly referred to a separate indemnity action between defendant and plaintiff's employer; (4) defendant's request for certain points for charge should have been granted; (5) instructions to the jury on "proximate causation" were inadequate; (6) cautionary instructions on the effect of federal income taxes on the damages awarded should have been given to the jury; (7) the defendant either should have been permitted to impeach the jury's verdict, or should have been granted a new trial when it became known to the court that the jury failed to follow the court's instructions with regard to damages.
The defendant's motions will be denied.
(1) Viewing the evidence in the light most favorable to the plaintiff ( Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir. 1959), cert. denied, 364 U.S. 835, 81 S. Ct. 58, 5 L. Ed. 2d 60 (1960)), the jury could reasonably have found the facts to be as follows:
On the afternoon of September 25, 1964, Domeracki was a member of a work crew assigned by his employer, the Philadelphia Ship Maintenance Co., to load stores, including 3 or 4 heavy crates of machinery weighing 300-350 pounds each, aboard the SS ESSO LIMA. Although the vessel's mate was aware of the size and weight of the crates, he denied the request of the foreman of the work crew to use the ship's boom for loading the stores. The foreman then ordered his crew to load the stores by passing them through the pipe rail, an opening in the railing of the ship crossed by two chains which lock onto the side railing. The lower chain was disengaged and dropped, but the longshoremen were unable to free the upper chain because the lock was rusted and frozen. The mate was informed that the chain was frozen but he did nothing to correct it, telling the foreman to do the best he could. The work crew then proceeded to attempt to load the stores by passing them through the opening between the lip of the ship and the upper chain. The mate was on deck in the vicinity while the loading operation was going on. While one of the heavy crates of machinery was being thus loaded it was blocked by the upper chain. Domeracki lifted the chain and at the same time pressed down on the crate to permit his co-workers to push the crate onto the deck. While plaintiff was in this precarious position, the crate slipped and plaintiff felt a sharp pain in his back. He was unable to perform further duties that day.
As a result of the occurrence, plaintiff suffered two herniated discs. One was corrected by surgery, but plaintiff refused further surgery because of fear and uncertainty as to the success of a second operation. Domeracki's doctors testified that he will continue to suffer pain in his back and numbness in his leg, and that he will no longer be able to perform manual labor.
By its answers to the court's interrogatories, the jury found that defendant breached its duty to furnish a seaworthy vessel (a) by furnishing defective equipment (the frozen chain); (b) by failing to supply adequate equipment (the ship's boom); and (c) by permitting an improper method of loading; that defendant was negligent in failing to provide a reasonably safe place for plaintiff to work; that plaintiff was not contributorily negligent; that defendant's failure to maintain a seaworthy vessel and the defendant's negligence were the proximate causes of plaintiff's injuries, and assessed damages in the total amount of $270,982.
The jury's special verdict as to defendant's breaches of duty and causation was based on ample evidence and consequently the verdict must stand. Cf. Blackburn v. Aetna Freight Lines, Inc., 250 F. Supp. 289 (W.D. Pa.), aff'd, 368 F.2d 345 (3d Cir. 1966); Tarter v. Souderton Motor Co., 257 F. Supp. 598 (E.D. Pa. 1966).
(2) Defendant contends that the $270,982 award was excessive and that it was the result of passion and prejudice occasioned by plaintiff's counsel's remarks during summation concerning the then recent discovery by the corporate defendant of huge oil reserves in Alaska. The defendant, however, failed to object to the remarks at the time and is precluded from raising the objection now. Uhl v. Echols Transfer Co., 238 F.2d 760, 765 (5th Cir. 1956); Levin v. Trans World Airlines, Inc., 201 F. Supp. 791 (W.D. Pa. 1962); Russell v. Monongahela Ry. Co., 159 F. Supp. 650 (W.D. Pa.), aff'd, 262 F.2d 349 (3d Cir. 1958). In any event the remarks were not so prejudicial as to justify a new trial, particularly in view of the cautionary instructions given to the jury. Cf. Marchant v. American Airlines, Inc., 146 F. Supp. 612 (D.C.R.I. 1956), aff'd, 249 F.2d 612 (1st Cir. 1957).
As to the amount of the award, although high, it was within reasonable limits. The evidence established that past medical expenses and loss of earnings totalled approximately $31,000. At the time of trial, the plaintiff had a life expectancy of approximately 34 years and had little chance of rehabilitation. Even under defendant's assuredly conservative figures, the present worth of plaintiff's future earnings loss would be at least $100,000. The jury could very properly have awarded $140,000 for past and future pain and suffering and loss of life's pleasures. The award was based on sufficient evidence and was not so high as to shock the conscience of the court. Thompson v. Calmar Steamship Corp., 331 F.2d 657 (3d Cir.), cert. denied, 379 U.S. 913, 85 S. Ct. 259, 13 L. Ed. 2d 184 (1964); Russell v. Monongahela Ry. Co., 262 F.2d 349 (3d Cir. 1958); Mainelli v. Haberstroh, 237 F. Supp. 190 (M.D. Pa. 1964), aff'd per curiam, 344 F.2d 965 (3d Cir. 1965).
(3) During the summation by plaintiff's counsel, reference was made to a separate indemnity action instituted by the defendant against the plaintiff's employer. Defendant immediately objected, and I gave cautionary instructions to the jury to disregard the remarks and admonished counsel for having made them. I cannot understand how the comment can be considered prejudicial in light of the fact that in most suits by longshoremen against vessels, the indemnity action by the vessel against the stevedore is tried before the same jury as a third-party action in the longshoreman's suit. Again, however, whatever prejudice might have resulted was eliminated by cautionary instructions. Cf. Marchant v. American Airlines, Inc., supra.
(4) Defendant's counsel requested certain points for charge (notably his numbers 12-15 inclusive).
I refused to charge the jury precisely as ...