Rotondo v. Isthmian Steamship Co.
| Decision Date | 02 May 1957 |
| Docket Number | No. 294,Docket 24429.,294 |
| Parties | Joseph ROTONDO, Plaintiff-Appellant, v. ISTHMIAN STEAMSHIP CO., Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Ralph Stout, New York City, Thomas O'Rourke Gallagher, Brooklyn, N. Y., for appellant.
George S. Pickwick, Garvey & Conway, New York City, for appellee.
Before HAND, MEDINA and WATERMAN, Circuit Judges.
The plaintiff, a longshoreman, appeals from a judgment against him, entered on a verdict in an action to recover for personal injuries, suffered on board one of the defendant's ships where he was at work as a "business visitor." The jurisdiction of the district court depended upon diversity of citizenship; and the facts were in substance as follows. The defendant's vessel was moored to a pier in Brooklyn, and the plaintiff was employed by a stevedoring company that had contracted to lade her. While standing on the edge of one of the hatches, he slipped and fell to a lower deck, suffering the injuries in question. He alleged that the hatch was ill-lighted and that the coaming of the hatch where he fell was slippery from grease, which made the ship not a reasonably safe place to work. The presence of the grease upon the edge of the hatch he proved by two witnesses, whom the defendant called no witnesses to rebut, relying upon its cross-examination and the inherent weakness of the witnesses' testimony. At the conclusion of the evidence the plaintiff did not move for the direction of a verdict in his favor on the issue of the defendant's liability, nor did he except to any part of the judge's charge. The judge ordered a sealed verdict which, being returned for the defendant, the plaintiff at once moved to set aside as contrary to the law and the weight of the evidence. This the judge denied and entered judgment in favor of the defendant, and the plaintiff appealed. About two months later the plaintiff moved this court, before which the appeal was pending, for an order authorizing the clerk of the district court to furnish the plaintiff's attorney with the names and addresses of the jurors, for permission to interview and question them, and to put their statements in affidavit form. This court denied the motion but suggested that such a motion might be made in the district court, and the plaintiff did so move, adding to the relief demanded that, if he had difficulty in getting statements from the jurors, subpoenas should issue directing them to appear in court to testify. This motion Judge Galston denied, and the plaintiff has appealed from this order as well as from the judgment. Upon the appeal he raises three questions: (1) that the verdict was without support in the evidence; (2) that he should have been allowed to examine the jurors as to improper influences that had affected the verdict; and (3) that what the judge said to the jury after the charge constituted reversible error. We reserve a statement as to the evidence upon the last two points until we dispose of the first.
As we have said, the plaintiff did not move for a directed verdict, so that, if he has any relief, it can only be because his motion should have been granted to set aside the verdict as against the weight of the evidence. We have again and again held that if a party does not ask for a directed verdict he may not raise the insufficiency of the evidence to sustain it on appeal.1 Even were this not true, it is hornbook law that the question rests in the discretion of the judge, and that when the verdict depends upon the credibility of witnesses the jury is free to accept or reject what they say. Especially was this true in the case at bar, for the testimony as to the existence of the grease at the edge of the hatch was far from conclusive. One witness said of the place where the plaintiff stood: The other said that he saw a spot which was of the "color of grease." All that the plaintiff himself said was that he slipped and fell.
The plaintiff's second point was the denial of his motion to examine the jury: it was based on the following facts. After the verdict had been entered and the jurors released, the plaintiff's attorney was trying to explain to him why the verdict should have been in his favor, and several of the jurors, who were nearby, joined in the talk. These jurors declared that the steamship company was not the proper party to sue, because the ship was not responsible; and it was the employer who should have given the plaintiff a safe place...
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United States v. Hayes
...as the inquiries raised by defendants go to the very heart of what facts induced them to decide how they did, cf. Rotondo v. Isthmian Steamship Co., 243 F.2d 581 (CA 2 1957), we find no way that the proscription of these rules may be circumvented in entertaining defendants' requested relief......
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United States v. Dioguardi
...at 53. The refusal of the Second Circuit to deviate from this rule is amply supported by their decisions. In Rotondo v. Isthmian Steamship Co., 243 F.2d 581 (2d Cir. 1957), a per curiam opinion, the court refused to allow a post-verdict examination of the jury, stating it is completely well......
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United States v. Dioguardi
...Court seen fit since then to relax its position, McDonald v. Pless, supra, 238 U.S. at 269, 35 S.Ct. 783. See Rotondo v. Isthmian Steamship Co., 243 F.2d 581, 583 (2d Cir. 1957); United States v. Crosby, 294 F.2d 928, 949-950 (2d Cir. 1961), cert. den. sub nom. Mittelman v. United States, 3......
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Bartholomew v. Universe Tankships, Inc.
...Steamship Co., 2 Cir., 1958, 253 F.2d 414; McDonald v. Pless, 1915, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Rotondo v. Isthmian Steamship Co., 2 Cir., 1957, 243 F.2d 581, certiorari denied 355 U.S. 834, 78 S.Ct. 53, 2 L.Ed.2d Affirmed. LUMBARD, Circuit Judge (concurring). My concurrence ......