The opinion of the court was delivered by: GORBEY
Before this court are defendant's motions for judgment notwithstanding the verdict and in the alternative, a new trial.
This is an action by a seaman, Edward Neidlinger, against the shipowner, Victory Carriers, Inc., for injuries allegedly sustained while plaintiff was employed upon defendant's vessel, the SS NORTHWESTERN VICTORY. The plaintiff claimed that he was injured on December 22, 1970. While he was mopping the messroom deck, the vessel rolled, he straightened up and struck his back on a wooden box which was attached to the wall located behind him.
This box, known as the "salt box", was used in the messroom to keep the salt dry. Plaintiff alleged that his injuries were the result of the unseaworthy condition of defendant's vessel and/or the negligence of defendant.
The case was tried before this court and a jury of eight in a three-day trial, commencing February 20, 1973, and ending February 22, 1973. The jury found in favor of the plaintiff and against defendant on both the issue of unseaworthiness and negligence, and awarded damages in the amount of $135,000.00.
First, defendant argues that there was no definitive evidence presented which would substantiate a finding that the SS NORTHWESTERN VICTORY was unseaworthy. Since the jury found that the vessel was unseaworthy, all conflicts in the testimony must be resolved in favor of the plaintiff, and the evidence and inferences evaluated in the light most favorable to him. Daniel v. Pittsburgh and Lake Erie RR Co., 389 F.2d 922 at 924 (3d Cir. 1968); Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969); Janek v. Celebrezze, 336 F.2d 828, 834 (3d Cir. 1964).
Here plaintiff testified
that the "salt box" was about 12 inches high, by 14 inches long, by 14 inches wide, located about 40 inches off the floor. The distance between the wall where the box was located, and the table, was about 4 feet,
with a stool in between. In this limited area, plaintiff had to maneuver a mop to clean the deck of the ship, which may roll or pitch at anytime. From these facts, the jury could have found that the configuration and location of the "salt box" rendered the area not reasonably fit for its intended use and, thus, unseaworthy. See, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960); Earles v. Union Barge Line Corp., 486 F.2d 1097 (3d Cir. 1973). Accordingly, the court cannot and will not upset that determination.
In addition, defendant challenges the jury's finding that the plaintiff was not guilty of contributory negligence. Defendant's main contention is that since plaintiff knew of the condition, he was negligent as a matter of law in continuing to perform his duties. This proposition cannot be accepted. See San Pedro Compania Armadoras S.A. v. Yannacopoulos, 357 F.2d 737, 741 (5th Cir. 1966). The record does not show any evidence that plaintiff performed his duties in a negligent manner; even if there was such evidence, it would be for the jury to consider.
Accordingly, defendant's motion for judgment notwithstanding the verdict is denied.
In support of his motion for a new trial, the defendant argues that this court erred in its instructions to the jury concerning calculation of present worth. Defendant relies heavily on the case of Russell v. City of Wildwood, 428 F.2d 1176 (3d Cir. 1970). In this case, the court reversed the trial court because there was no evidence and no instruction to the jury on how to reduce future earnings to present worth. See also Ballantine v. Central Railroad of New Jersey, 460 F.2d 540 (3d Cir. 1972). The only instruction that the trial court gave was that this reduction must be made. This is not the situation in the instant case.
At trial, the plaintiff introduced present worth tables (plaintiff's exhibit 16) to which the jury could look to reduce the future loss to present value. The use of the table was explained in plaintiff's closing argument.
While we agree with defendant the closing statements are not evidence, we do not agree that explanation of evidence is improper in closing arguments. Solorio v. Atchison, Topeka and Santa Fe RR Co., 224 F.2d 544 (10th Cir. 1955). In fact, that is one of the main purposes of such argument. In addition, the record indicates that defense counsel had no objection to such procedure
when plaintiff's exhibit 16 was offered into evidence.
Finally, defendant argues that the $135,000 verdict awarded by the jury is excessive. In deciding this, we must again construe the evidence in a light favorable to the plaintiff. Daniel v. Pittsburgh and Lake Erie RR Co., supra. It is not the court's function to second-guess the jury, but only determine if there was sufficient evidence to support the jury's finding. Appleman v. United States, 338 F.2d 729 (7th Cir. 1964).
From the evidence, the jury could have found that plaintiff lost over $10,000 in past wages to trial.
They could also have found that plaintiff's future earning capacity was impaired by his inability to perform tile-setting. This could reasonably amount to approximately $10,000 a year;
and if taken to age 65, this would be $120,000. Reduced to present value, it would represent about $83,800. The fact that plaintiff did not, up to this point, do tile-setting full-time, would not limit the jury from finding on that basis, for the recovery is for impairment of earning capacity ( Downie v. United States Lines Co., 359 F.2d 344 (3d Cir. 1966); see also, Koehler v. United States, 187 F.2d 933 (7th Cir. 1951)) and the jury had sufficient evidence to conclude that plaintiff's earning capacity was impaired to the extent of $10,000 a year. The jury could have arrived at a similar ...