Fleming v. American Export Isbrandtsen Lines, Inc., 177-178

• Decision Date: 19 November 1971
• Docket Number: Dockets 34768,No. 177-178,34805.,177-178
• Citation: 451 F.2d 1329
• Parties: Jesse D. FLEMING, Appellant and Cross-Appellee, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

451 F.2d 1329 (1971)

Jesse D. FLEMING, Appellant and Cross-Appellee, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Appellee and Cross-Appellant.

Nos. 177-178, Dockets 34768, 34805.

United States Court of Appeals, Second Circuit.

Argued October 8, 1971.

Decided November 19, 1971.

Alan H. Buchsbaum, New York City (Semel, Patrusky & Buchsbaum, New York City, on the brief), for appellant-cross-appellee.

James M. Estabrook, New York City (Lennard K. Rambusch, Haight, Gardner, Poor & Havens, New York City, on the brief), for appellee-cross-appellant.

Before MOORE, HAYS and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

Plaintiff, a seaman, brought this suit for damages for personal injuries on the grounds of the unseaworthiness of defendant's vessel and of defendant's liability for negligence under the Jones Act, 46 U.S.C. § 688 (1970). Separate trials on the issues of liability and damages were had pursuant to Rule 42(b) of the Federal Rules of Civil Procedure. After plaintiff had presented his evidence, defendant moved to dismiss the complaint and for a directed verdict on both the unseaworthiness and the negligence claims. The district court denied the motions. The jury's special verdict, pursuant to Rule 49(a), ruled that "the defendant was negligent . . . due to the condition of the tabletop or the lack of a guard on the circular saw in the carpentry shop," and that the negligence proximately caused the accident. The special verdict also held that the defendant's ship was unseaworthy by reason of "the condition of the tabletop or the lack of a guard on the circular saw . . .." The jury found, however, that plaintiff's own negligence had contributed to his injuries to the extent of 20%. The jury awarded plaintiff damages in a gross amount of $35,000, itemized in their special verdict on the issues, $4,300 for loss of past wages; $15,000 for loss of future wages (computed on the basis of the jury's finding that plaintiff's average annual loss of future wages for 10 years was $1,942.50 with the total $19,425 discounted by 5%); $5,700 for past pain, suffering, and disability; $10,000 for future pain, suffering, and disability. The total $35,000 was reduced by 20% to reflect plaintiff's contributory negligence. After the jury verdict as to liability, defendant moved for judgment notwithstanding the verdict which the court denied. After the jury verdict as to damages, the court, 318 F.Supp. 194, granted defendant's motion to set aside the ratably reduced jury award of $12,000 for future loss of earnings as not supported by the evidence, and entered judgment for plaintiff for $16,000. Defendant appeals the denials of its motions for a directed verdict and for judgment notwithstanding the verdict, and plaintiff cross-appeals the grant of defendant's motion to set aside the jury award for future loss of earnings. We affirm the denial of defendant's motions for a directed verdict and judgment notwithstanding the verdict, and grant plaintiff's motion to restore that part of the jury's verdict ($12,000) that the court set aside.

The events surrounding the accident are for the most part not disputed. On December 12, 1967 plaintiff was the chief carpenter on the s/s Constitution, a position he had held since 1961. The ship was undergoing its annual overhaul and Coast Guard inspection in drydock at Hoboken, New Jersey. The chief officer had requested plaintiff to build a shelf for the captain. The design of the shelf, as sketched apparently by the captain, required that a 3/8 inch groove be cut along the length of a board. In the ship's carpentry shop plaintiff cut to appropriate size, with a portable hand saw, a sheet of plywood. In order to cut the 3/8 inch groove in the ¾ inch plywood, plaintiff used the shop's circular table saw which did not have a protective blade guard. Plaintiff stood at one end of the saw, with the blade spinning toward him, and fed the board through the saw with his right hand while his left hand secured the board on the tabletop. Plaintiff testified that, when he could not feed the board through any further because there was a bandsaw in front of the circular saw, he reached with his right hand to turn off the saw. He further testified that he leaned on the tabletop with his hip, and the top slipped thus jamming the wood into the teeth of the saw and pulling the wood away from him, and that the momentum of this sudden movement drew plaintiff's left hand which was securing the board into the blade. Plaintiff claimed that the defendant was negligent in not providing a blade guard for the saw and in not regularly inspecting the lug nuts that secured the tabletop to insure that the tabletop would not shift and that defendant's negligence was the proximate cause of plaintiff's injuries.

I. The Motions for a Directed Verdict and Judgment Notwithstanding the Verdict

The evidence supporting plaintiff's claim tended to establish that he had requested the chief officer in 1967 to make certain repairs on the circular saw, that there was no blade guard on the saw at the time of the accident, that the tabletop had never shifted before, that it was the duty of the chief officer to inspect the equipment in the carpentry shop, and that these inspections were casual, involving merely an observation of the saws if they were in operation when the chief officer happened to be in the carpentry shop.

Defendant's evidence consisted of testimony by the two men who alternated as chief officer that plaintiff had never complained of any defects in the saw or requested any repairs, that they had observed no defects in the saw, and that the tabletop did not move when the chief officer leaned on it in connection with filling out the report immediately after the accident. There was also testimony of the second mate who used the machine in June 1967 without observing any defects in the saw, and testimony of a carpentry expert that a blade guard would be unnecessary in a grooving operation.

Defendant contends on this appeal that the evidence established that the accident was solely the result of plaintiff's negligence because he knew of the lack of a guard on the blade, and that the district court erred in allowing the jury to pass on whether the lack of a blade guard was the proximate cause of plaintiff's injuries. We affirm the denial of defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

The standard for determining whether plaintiff has presented sufficient evidence to raise a jury question as to defendant's negligence is whether, viewing the evidence in the record in the light most favorable to plaintiff, "there is a complete absence of probative facts to support the conclusion reached" by the jury. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957) which adopted for Jones Act cases the standard established in Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) for F.E.L.A. cases. The same test applies in determining the sufficiency of the evidence as to a plaintiff-seaman's contributory negligence. McBride v. Loffland Bros. Co., 422 F.2d 363 (5th Cir. 1970).

Applying these standards we find that in the present case there was sufficient evidence to support the jury's conclusion that defendant was negligent and that plaintiff was less than 100% contributorily negligent. There was testimony that the tabletop moved under plaintiff's weight when it had never so moved previously, that the inspections of the saw were infrequent and cursory, that plaintiff had requested that the saw be repaired, and that there was no blade guard. Defendant's proof flatly contradicted plaintiff's assertions that he had requested repairs and that the tabletop moved, thus raising issues of credibility for the jury to resolve. There was evidence by which the jury could have concluded that a guard could have prevented this accident and the lack of one was the proximate cause of the accident.

II. The Claim for Future Loss of Earnings

The district court granted defendant's motion to set aside the verdict granting damages for future loss of earning power, on the ground that the plaintiff offered no proof that he could have earned more than he is presently earning but for the accident. Reviewing the evidence in the light most favorable to the plaintiff, we hold that the district court erred in holding that the jury's verdict was wrong as a matter of law.

Plaintiff was hospitalized from the date of injury, December 12, 1967, to December 18, 1967, and underwent surgery on his left hand. After receiving treatment as an outpatient for five months, plaintiff was certified fit for duty on May 3, 1968, and from May 17 until August 31, 1968 he worked as carpenter on the s/s Constitution. On the latter date the ship was taken out of service. On November 7 plaintiff took a job as a watchman with an annual salary of $7,800. The parties agree that plaintiff's annual salary as a ship's carpenter prior to the injury was $10,000.

Plaintiff testified that, because of the condition of his left hand, he could not perform the type of carpentry done on land because "skilled carpentry requires closing and building and building a flooring and that and I couldn't hold a handful of nails to do a floor or work on the side of a shaft securely." The defendant offered no evidence to rebut this assertion that plaintiff could not work ashore.

A physician, formerly of the United States Public Health Service Hospital on Staten Island, who had treated plaintiff, described plaintiff's injuries and testified that they were permanent. He concluded:

"Because of the almost complete loss in the use of the index finger and the partial loss of the middle finger due to the laceration of the extensor tendon that does not permit him to straighten this finger, I feel that he could not do the type

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