Cooper v. D/SA/S PROGRESS

• Decision Date: 28 October 1960
• Docket Number: Civ. A. No. 23329.
• Parties: Orval COOPER, Jr. v. D/S A/S PROGRESS and Marius Nielsen & Son v. JARKA CORPORATION OF PHILADELPHIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

188 F. Supp. 578

Orval COOPER, Jr. v. D/S A/S PROGRESS and Marius Nielsen & Son v. JARKA CORPORATION OF PHILADELPHIA.

Civ. A. No. 23329.

United States District Court E. D. Pennsylvania.

October 28, 1960.

Avram G. Adler, Philadelphia, Pa., for plaintiff.

T. E. Byrne, Jr., Philadelphia, Pa., for defendants.

George E. Beechwood, Philadelphia, Pa., for third-party defendant.

VAN DUSEN, District Judge.

Post-trial motions are now before the court in this personal injury action brought by a stevedore injured in the early morning (about 3:30 A.M.) of January 17, 1957, when a payloader he was operating in the hold of the S.S. Valborg Nielsen, while taking bulk sugar in its bucket to the gantry box, turned over on its side. The jury returned a special verdict for plaintiff on the issue of liability¹ and the parties stipulated that "the amount which shall be entered as the gross verdict of the jury is $15,000." pages 2-3 of March 11 transcript (Document No. 51) and N.T. 1051.

On March 7, 1956, North Atlantic & Gulf Steamship Co. entered into a Time Charter of the S.S. Valborg Nielsen from its Danish owner (D-8). On December 26, 1956, North Atlantic & Gulf Steamship Co., as chartered owner, entered into a Sugar Charter Party with the American Sugar Refining Company (hereinafter called "refining company") as charterer for a voyage to transport 3200 long tons of raw sugar from Cuba to New York, Philadelphia, Baltimore or Boston (D-4). Paragraph 6 of the agreement provided "Stevedore for discharging shall be appointed by the Charterer and * * * vessel will allow to the Charterer for discharging" $2.09 per long ton. In January 1957, refining company had a contract dated June 30, 1954, with Jarka Corporation of Philadelphia, third-party defendant and hereinafter called "Jarka" (D-4), under the terms of which Jarka was engaged, "as an independent contractor, to perform, commencing at such time on or after July 1, 1954 * * * all the duties of a stevedore with respect to the discharge of raw sugar" at your Philadelphia refinery "from all deep-sea vessels as to which you shall have the right to appoint the stevedore" (paragraph 1 of 6/30/54 contract in D-4). Jarka agreed "to perform all the work" under the 6/30/54 contract "in an * * * efficient manner in keeping with the best operating practices * * *" (par. 1). In paragraph 3(d), Jarka agreed to:

"Discharge all of each vessel's sugar cargo from any part of the vessel in which it may be stowed or located, * * *. Bulk sugar shall be so discharged by moving and trimming it into the marine gantry elevators and having it moved thereon to the main sugar conveyor belt on the Refinery pier or by discharging it into such other mechanical bulk sugar discharging equipment as you may provide."

In January 1957, refinery company provided a marine gantry elevator for the discharging of the bulk sugar from the S.S. Valborg Nielsen at its Philadelphia pier.

On March 14, 1960, judgment was entered on the special verdict of the jury in favor of plaintiff and against defendant in the amount of $10,500 and costs (Document No. 45). On March 18, 1960, additional evidence was offered in the third-party action (N.T. 1077 ff.) and an order was entered that the right of indemnity exists in favor of third-party plaintiffs and against third-party defendant and that the former, or either of them, may hereafter have judgment against the latter for any amount they prove has been paid in total or partial satisfaction of the March 14, 1960, judgment (N.T. 1094-5).² See Smith v. Whitmore, 3 Cir., 1959, 270 F.2d 741, 746.

I. Plaintiff's Motion for Judgment N.O.V. (Document No. 43) and To Alter and Amend Judgment under F.R.Civ.P. 59(e), 28 U.S.C.A. (Document No. 54)

Plaintiff contends that it was reversible error for the trial judge to submit the issue of possible contributory negligence to the jury in the form of the following questions 5 and 6 included in the Special Verdict:

"5. Did any negligence of plaintiff contribute to the accident?

Yes or No Yes

"6. If your answer to question 5 is `yes,' in what percentage did plaintiff's negligence contribute to the accident?

30%"³

The testimony of the witnesses offered by plaintiff includes evidence from which the jury could have found the plaintiff was contributorily negligent, as indicated below. Since the evidence must be viewed in the light most favorable to the verdict of the jury, these motions must be denied for this reason and those stated below under this heading:

Contention that the testimony of Dr. A. E. Baccini called by third-party defendant presented the only evidence of contributory negligence is rejected.

Plaintiff testified that he had a hard time seeing ahead on either side as he went forward with the bucket rising, since the visibility was very poor (N.T. 170 & 182), and that he started raising the bucket when his payloader started forward toward the gantry box (N.T. 164),⁴ even though he saw large lumps of sugar ahead of him (N.T. 289). If this testimony is accepted, the jury could have found the plaintiff contributorily negligent for starting to raise his bucket so far from the gantry box.

Also, there was testimony that, when the arm of the payloader was level with the steering wheel, there was no obstruction to the vision of the driver to the right or to the left (N.T. 121)⁵ and that plaintiff had the arm or riding gear holding the bucket a little above the steering wheel when the payloader fell on its side (N.T. 126 & 135). If this was true, the jury could have found the plaintiff contributorily negligent for not looking out to the side of the payloader.

Plaintiff emphasizes this excerpt from the charge (N.T. 1005):

"The only evidence that I can remember right off—and you have got to consider all the evidence, and not just accept my memory; I am just trying to tell you what I remember to point up these questions—is that Mr. Buccini, the man from Drexel here, said that this is a perfectly visible payloader, you could see in front of you, you could see around to the side, you could look around the side and see what was right in front of the front wheels."

The plaintiff overlooks these points:

A. The trial judge's use of the words "right off," indicating it was only his immediate memory without a review of all the testimony.

B. The above-quoted language within the dashes.

C. The emphasis of the judge throughout the charge that it was the jury's memory of the testimony, not that of the trial judge, which should control.⁶

D. The following statement of the trial judge to counsel on March 3 in the absence of the jury, prior to the closing arguments to the jury (N.T. 961):

"* * * the plaintiff's testimony that he did not look because it was not worthwhile, alone substantiates the possibility of contributory negligence, and I can think of other factors, too."

Contention that jury should not have been permitted to consider evidence offered by third-party defendant in deciding questions 5 and 6 concerning contributory negligence is rejected.

The defendant raised the defense of contributory negligence of plaintiff in its Answer (Document No. 5) filed 10/23/57, and repeated this defense in its pre-trial memorandum (Document No. 9, filed 2/13/59), so that plaintiff had no reason to be surprised by its submission to the jury.⁷ F.R.Civ.P. 14 permitted the institution of the third-party action and F.R.Civ.P. 42(a) would have permitted the joinder of the third-party action for trial with the cause of action covered in the Complaint, even if it had been a separate suit, so that the rules clearly permit the trial of both the principal action and the third-party action together. Once a trial is held on several causes of action arising out of an accident, it is in the interest of justice to have the fact finder consider all the evidence concerning the accident, irrespective of what party (cross-claim defendant or third-party defendant) offers it. The language, relied on by plaintiff and used in the summons attached to Exhibit A to F.R.Civ.P. Form 22,⁸ is included for use in the event that the plaintiff does file a complaint against the thirdparty defendant as he is permitted, but not required, to do under the fifth sentence of F.R.Civ.P. 14(a).⁹ The fact this language was not eliminated from the form used in this case is of no significance, particularly since plaintiff is not asking for default judgment against third-party defendant.¹⁰

It is also noted that the trial judge was never requested to instruct the jury that Dr. Baccini's testimony (N.T. 864ff.) should not be considered by the jury on the issue of contributory negligence (N.T. 1010-1016). Plaintiff concedes at page 3 of his April 5 brief that the testimony of Dr. Baccini was relevant and necessary in the third-party action. Under such circumstances, the plaintiff cannot now complain that Dr. Baccini's testimony was considered by the jury on this issue (see F.R.Civ.P. 51 and 61), even assuming the trial judge was in error in not severing the principal action from the third-party action for purposes of trial.

II. Post-Trial Motions of Original Defendants (Document No. 53)¹¹ and Motion To Strike Third Interrogatory of Third-Party Defendant (Document No. 55)¹²

In answering Special Question 1, the jury found that the payloader was not an unseaworthy appliance and the answer to Special Question 2 established that the ship was not unseaworthy in any list of the ship. Both defendants and third-party defendant object to the third special question, which was worded as follows:

"3. Was any unseaworthiness of the ship or negligence of its crew, other than as described in questions 1 and 2 above, a substantial factor in causing the accident?

Yes or No Yes"

However, third-party defendant's counsel specifically approved both questions 3 and 4 when they were submitted to him for comment the day before the charge was given (N.T. 959).¹³ Defendants' counsel consistently objected to this...