Demauro v. Central Gulf SS Corp., 585
| Decision Date | 28 March 1975 |
| Docket Number | D,No. 585,585 |
| Citation | 514 F.2d 403 |
| Parties | Patrick DeMAURO, Plaintiff-Appellee, v. CENTRAL GULF SS CORP., Defendant and Third Party Plaintiff-Appellee-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third Party Defendant-Appellant. ocket 74-2243. |
| Court | U.S. Court of Appeals — Second Circuit |
Albert V. Testa, New York City (Sidney A. Schwartz, Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third party defendant-appellant.
Martin Lassoff, New York City (Morris Cizner, Zimmerman & Zimmerman, New York City, of counsel), for plaintiff-appellee.
John B. Shields, New York City (William K. Tormey, Bigham, Englar, Jones & Houston, New York City, of counsel), for defendant and third party plaintiff-appellee and appellant.
Before ANDERSON, MULLIGAN and VAN GRAAFEILAND, Circuit Judges.
Patrick DeMauro, a longshoreman, was injured by the collapse of a tier of wooden boxes while he was unloading cargo from the hatch of a ship docked at Bayonne, N. J. This appeal is from a judgment in his favor against the shipowner, Central Gulf SS Corp., and a judgment over for the full amount against the impleaded third party defendant, International Terminal Operating Co., Inc., DeMauro's employer.
Third-party defendant-appellant, hereinafter designated International, contends that the trial court erred in directing a verdict on liability in favor of DeMauro against the shipowner, Central, and in failing to submit special written interrogatories to the jury to which was submitted the issue of liability as between Central and International. International also argues that the jury verdict in favor of Central in the action over was against the weight of the evidence.
Central and International agree, as does this Court, that the verdict for plaintiff was excessive. We find International's other contentions to be without merit.
The boxes which fell were stacked upon a pile of pipes. There was testimony that these boxes were being supported by shoring on the day preceding the accident but that this shoring was not in place when the boxes fell. This latter testimony was in dispute because of DeMauro's contrary answers to pretrial interrogatories and photographs which purported to show shoring timbers in the vicinity of the fallen boxes subsequent to the accident. In any event, it was undisputed that DeMauro had not gone near the boxes prior to his injury.
On this proof, counsel for Central concluded that he had no valid claim of contributory negligence on the part of DeMauro and withdrew this affirmative defense. Counsel for DeMauro thereupon withdrew his cause of action sounding in negligence and moved for a directed verdict against Central on the issue of unseaworthiness which was granted. All of this occurred without objection on the part of International.
Absent fundamental error, a party who neglects to assert his disagreement with a trial court's rulings or orders will not receive a ready ear for protest made in the first instance in this Court. United States v. Jenkins, 510 F.2d 495 (2d Cir., 1975); United States v. Vater, 259 F.2d 667 (2d Cir. 1958). We find no such...
To continue reading
Request your trial
-
Saleeby v. Kingsway Tankers, Inc.
...524 (2d Cir. 1959). See also Lennon v. United States, 579 F.2d 12 (2d Cir. 1978) (Lumbard, J., dissenting); DeMauro v. Central Gulf S.S. Corp., 514 F.2d 403, 405 (2d Cir. 1975); Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 443 F.2d 76 (2d Cir. 1971). Moreover, verdicts have b......
-
Wheatley v. Ford
...excessive damages or undergo a new trial. O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089-90 (2d Cir. 1978); DeMauro v. Central Gulf SS Corp., 514 F.2d 403, 405 (2d Cir. 1975). With these considerations firmly in mind, we examine the record to determine whether a verdict of $55,000 was Mos......
-
O'Gee v. Dobbs Houses, Inc.
...309 (1968); Batchkowsky v. Penn Central Co., 525 F.2d 1121, 1126 (2d Cir. 1975) (Lumbard, J., dissenting); DeMauro v. Central Gulf Steamship Corp., 514 F.2d 403 (2d Cir. 1975). We believe that the denial of the motion to set aside the verdict as excessive was, in this case, an abuse of disc......
-
Batchkowsky v. Penn Central Co., ANHEUSER-BUSC
... ... 532, 178 A.2d 208 (1962). See Polit v. Curtiss Wright Corp.,64 N.J.Super. 437, 166 A.2d 387 (App.Div.1960); Cozzi v. Owens Corning ... Relying principally upon our recent decision in DeMauro v. Central Gulf S.S. Corp. v. International Terminal Operating Co., Inc., ... ...