The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
This matter comes before the Court on the motions of the defendant, General Electric Company (G.E.), for judgment notwithstanding the verdict or in the alternative for a new trial. This was a bifurcated trial. The jury first returned a verdict for the plaintiff, Isiah Lockett, on liability and then awarded damages in the sum of $66,000.00.
During the morning hours of November 10, 1968, Lockett had been engaged in "blowing down" the debris with an air hose. This task was performed on the tank tops, which are below the decking or grating in the lower engine room. Some time after noon, approximately two hours prior to the accident, Lockett was told to stand on the deck in the lower engine room in the vicinity of the driveshaft and to pass buckets of debris from the tank tops to men working above him.
Some time between 3:30 P.M. and 3:45 P.M. Lockett stopped to clean his safety glasses. He was standing on the deck near the driveshaft and placed his left arm on one of the pinion gears. He was wearing "a pullover jacket with real wide, fluffy sleeves" tied at his wrists. (NT 2-19). Lockett's gang boss told him to tell the other laborers to complete the cleaning job before quitting time. When Lockett attempted to leave in order to carry out the gang boss's instructions, he became aware that his sleeve had become caught between one of the pinion gears and the split ring gear. At the time the driveshaft was "jacking", i.e., turning at a speed of one revolution every seven minutes for the purpose of cleaning the preservative from the main reduction gears. Lockett was unable to free himself from the gears, and before the driveshaft could be stopped he was pulled into the gears up to his shoulder, suffering injury to the muscles and nerves of the left upper arm and shoulder. Lockett testified that he was not aware, prior to the accident, that the driveshaft was turning. In normal operation the driveshaft turns at 120 revolution per minute. Lockett stated that the accident occurred on the port side of the vessel, where the "shaft stopped sensor" was located. Another witness for the plaintiff, Bruce H. Johnson, testified that the driveshaft was turning in a clockwise direction when viewed from the stern of the vessel and that this meant that Lockett could not have been drawn into the gears on the port side but only on the starboard side of the vessel, where the R.P.M. indicator was located. Other evidence in the case demonstrated that Lockett was caught in the gears on the starboard side of the vessel and not in the gears on the port side. This contradiction is not fatal to Lockett's case. Guenther v. Armstrong Rubber Company, 406 F.2d 1315, 1317-1318 (3rd Cir. 1969).
Although the final pretrial order stated that Lockett claimed liability against G.E. pursuant to sections 388, 389, 394 and 396 of the Restatement of Torts, Second (Restatement), at the trial Lockett's counsel limited his theory of liability specifically to sections 388 and 389 of the Restatement, and the case was submitted to the jury on these two theories.
G.E. contends that judgment notwithstanding the verdict should be granted because there was no competent evidence that G.E. furnished the gears involved in the accident. G.E. also contends that the evidence was insufficient to establish liability under section 388 or 389 of the Restatement. And finally, G.E. contends that Lockett was contributorily negligent as a matter of law.
Rule 43 of the Federal Rules of Civil Procedure provides, in pertinent part:
All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs . . .
The Federal shopbook rule, 28 U.S.C. § 1732(a) provides, in pertinent part:
In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
Since the parties stipulated that the exhibits were bills of material for equipment prepared by Sun Ship, and since it was testified that the said exhibits were made in the regular course of Sun Ship's business, the exhibits were admissible under the Federal shop book rule to show Sun Ship's intent to purchase the R.P.M. indicator and accompanying pinion gear from G.E. Even if exhibits P-5 and P-6 were inadmissible, however, any error was not prejudicial to G.E. because exhibit P-10, the purchase order from Sun Ship to G.E. for the R.P.M. indicator, and the accompanying pinion gear (N.T. 3-3, 3-14), was admitted into evidence with the express agreement of the defendant G.E. (N.T. 3-38). And as heretofore pointed out, the Chief Operating Engineer for Sun Ship identified the equipment specified in P-5 and P-6 as the same equipment installed on the ship.