Hastie, Chief Judge, and Maris and Freedman, Circuit Judges.
The plaintiff, Edna Mroz, claiming to be a seaman employed by the defendant Dravo Corporation to work as a cook and maid aboard its towboats navigating the Ohio River and its tributaries, filed a civil action in the United States District Court for the Western District of Pennsylvania on July 6, 1965. The complaint asserted three separate causes of action based upon negligence under the Jones Act, 46 U.S.C.A. § 688, and upon unseaworthiness under the maritime law. The first count of the complaint alleged that in March or April 1962 the plaintiff developed pulmonary emphysema which was aggravated by the defendant's failure to furnish her maintenance and cure and instead continuing to employ her and by employing her at work beyond her capacity to May 1965, resulting in permanent aggravation of her illness. The second count involved injuries alleged to have resulted from an accident early in March 1961. This count was subsequently amended by the plaintiff in order to set forth her excuse for the delay in suing on the claim. The third count involved injuries asserted to have resulted from an accident which occurred on May 26, 1965 on board the defendant's M/V Freedom. In each count the plaintiff claimed damages for pain and suffering, for loss of earnings and for impairment of earning power. On August 12, 1965 the plaintiff filed a libel in admiralty based on the same subject matter asserted in the civil action and in which she sought maintenance at the rate of $8.00 per day and $50,000 in damages for failure to provide maintenance and cure. The two cases were later consolidated for trial.
The defendant answered the complaint and the libel admitting that the plaintiff had been employed from time to time from June 27, 1942 to March 23, 1965 as a seaman; it admitted that the plaintiff had been treated at the United States Public Health Service Hospital at Baltimore for pulmonary emphysema, chronic sinusitis and other ailments from February 13 to March 8, 1962 when she was discharged as fit for duty with a diagnosis, inter alia, of improved pulmonary emphysema. It also admitted that the plaintiff had reported an accident on March 4, 1961. By way of defense to the first two counts of the civil complaint and the cognate claims of the libel the defendant contended, inter alia, that both the 1962 and 1961 claims were barred by the three years statute of limitations imposed by the Jones Act, 45 U.S.C.A. § 56, and by laches. With respect to the third count involving the 1965 accident, the defendant denied that the plaintiff was a crew member on the day of the accident because the M/V Freedom had been withdrawn from navigation in March 1965 and remained so until after May 1965 due to a strike by its licensed personnel.
A preliminary trial to a jury was held, which was confined to the jurisdictional issues thus raised with respect to count three. The evidence showed that the M/V Freedom was tied up at the defendant's dock on the Ohio River during a strike of its masters, pilots, mates and engineers which had started on March 31st and ended in the middle of June 1965. In early May the defendant had called back to work certain members of the National Maritime Union who were not on strike, including the plaintiff. Her duties were to cook meals for the deck hands and the landing men and to clean. She had the option of returning home each evening but sometimes she slept on the vessel. The deckhands were painting the kitchen, dining room and other parts of the vessel and it was being cleaned. The plaintiff was hurt on May 26, 1965 when she fell in the kitchen of the vessel. At the close of the plaintiff's evidence the defendant moved for a directed verdict which was denied. Two interrogatories were submitted to the jury, namely, whether the M/V Freedom was in navigation on May 26, 1965 and whether the plaintiff was a member of the crew of that vessel on that day. The jury answered both questions in the affirmative. The defendant then moved for judgment n.o.v. which was denied.
The two cases were tried on the merits to a jury. The plaintiff's claims under count one of the complaint and the cognate portion of the libel were limited to the three years immediately preceding July 6, 1965, the date the complaint was filed. At the close of plaintiff's case, the defendant rested without calling any witnesses and renewed its motion for a directed verdict on all counts of the complaint and the libel. The trial judge granted the motion as to count two of the complaint, the 1961 claim, and the cognate portion of the libel, on the ground that this claim was barred by the statute of limitations and unexcused laches. The remaining claims were submitted to the jury which returned verdicts in the sum of $18,000 in the civil action for damages and in the sum of $7,200 in the admiralty suit for maintenance and cure, upon which judgments were entered. The plaintiff then moved for a new trial and the defendant sought judgment n.o.v. on the first and third counts. Both motions were denied by the district court in a well-considered opinion by Judge Marsh, 1968, 293 F. Supp. 499. These appeals followed. The plaintiff at our docket No. 17692 seeks a new trial in the civil action claiming error in three respects. The defendant at our docket Nos. 17693 and 17694 appeals from the judgments entered in the civil and admiralty actions, respectively, claiming it was entitled to binding instructions on count one and the cognate claim of the libel on the merits and dismissal of the third count and the cognate portion of the libel on the ground that the plaintiff was not a member of the crew of a vessel in navigation on the day of the 1965 accident.
On the plaintiff's appeal her first contention is that the trial judge erred in directing a verdict on the claim involved in the second count of the complaint and the related portion of the libel which referred to the accident of March 4, 1961. With respect to this occurrence, the plaintiff testified that she was mopping the floor of the vessel and when she wrung out the mop the steel pin holding one of the rollers of the bucket gave way causing her foot to slip and the bucket to upset. She fell backward sustaining injuries to her head and neck. She reported the accident and later was sent to the Ohio Valley Hospital for skull x-rays, which proved to be negative. She went home on her seven days leave, returning to work thereafter and continuing in her employment, although she suffered neck pain, until May 26, 1965 when she had another accident, which is the subject of count three. It is not argued that the 1961 claim was not barred by the statute but it is urged that the trial judge erred in ruling that no substantial evidence of excusable delay had been presented. The plaintiff's amendment to this count setting up her excuse for the delay averred that the defendant had notice of the accident on the day it occurred, and through an examination by its physicians, but that she had not filed an earlier claim because she had lost no time from work and she had been informed by defendant's physician that he could find nothing wrong with her and she was afraid to antagonize her employer. She further averred that no prejudice had resulted to the defendant by her delay. No evidence, however, was produced to support her allegation that she did not prosecute her claim promptly due to fear of antagonizing her employer.
It is settled that delay may be excused when occasioned by special circumstances beyond the control of the injured or ill seaman,*fn1 and that under special circumstances a defendant may be estopped from asserting the statute of limitations or laches as a bar to the prosecution of the seaman's action.*fn2 The sufficiency of the special circumstances which are relied upon to excuse the late instituting of suit must be judged in the light of the equities of the particular case.*fn3 The district court held that the testimony of the plaintiff that she knew she had a right of action against the defendant but did not bring a timely suit because she did not lose any wages and because the doctor had told her nothing was wrong with her, did not reveal exceptional circumstances which in equity could excuse her delay. We do not think that the court erred in so ruling under the circumstances of the case.
The plaintiff strongly urges that it was for the defendant to come forward and prove that her delay was prejudicial. We cannot agree. This court in Lipfird v. Mississippi Valley Barge Line Company, 1962, 310 F.2d 639, 641-642, stated "that by analogy to the statutory limitation imposed upon Jones Act negligence claims laches on the part of a plaintiff seaman will be presumed if he fails for more than three years after an accident to assert unseaworthiness as a ground for recovery for personal injuries suffered therein. We have also held that such delay on the part of the plaintiff will bar the assertion by him of unseaworthiness as a ground for recovery unless he overcomes the presumption of inexcusable delay and detriment to the defendant resulting from the delay by pleading and proving facts which do excuse the delay and show that it has been in no way detrimental to the defendant." Contrary to the plaintiff's contention that her delay was excusable, her testimony showed that she had no intention of bringing suit on the 1961 accident within the permissible period for she stated that after she had been hospitalized in the Mercy Hospital in June and July 1965 for medical care following her May 1965 accident, "Not one person came in to see how I was getting along or sent a card" and that she had signed the papers instituting her action in July 1965 "because not one person was interested enough to even see how I was." [Tr. 117-118].
The plaintiff also urges that the trial judge erred in holding that there was no evidence that during the three years preceding July 6, 1965 the defendant had breached its duty to provide her with maintenance with respect to the injuries sustained in March 1961 or that the plaintiff had suffered aggravation of those injuries from the defendant's failure to furnish adequate and proper medical care. Our examination of the record discloses no evidence to support her contentions and we are satisfied that the trial judge was right in this regard. We conclude accordingly that the trial judge did not err in directing a verdict on the 1961 claim.
The plaintiff's next contention is that the trial judge erred in submitting to the jury the issue of contributory negligence on her part with respect to the claims involved in counts one and three of the complaint. On the other hand, the defendant urges with respect to count one that the plaintiff failed to make out a case of negligence on the part of the defendant as the proximate cause of her aggravated emphysema and that with respect to count three she failed to prove that the M/V Freedom was in navigation on May 26, 1965, the date of her accident. The defendant accordingly contends that the trial judge erred in refusing to grant its motions for a directed verdict as to these counts as well as its subsequent motions for judgment n.o.v. on each of these counts.
We turn first to the defendant's contentions with respect to count one. In considering them we bear in mind, as did the trial judge, that courts are not free to reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions or because judges think that another result would be more reasonable.*fn4 We must accept as true all the facts favorable to the plaintiff which the evidence tends to prove and draw all reasonable inferences against the defendant.*fn5 Viewing in this light the evidence submitted at trial in this case, it became the duty of the trial judge, as it is of this court upon these appeals, to determine whether as a matter of law the plaintiff's evidence made out a case upon which the law will afford relief.*fn6
Judge Marsh, in the opinion of the district court on the defendant's motion for judgment n.o.v. on count one, analyzed the evidence and discussed the inferences and conclusions of negligence on the part of the ...