Smith v. Trans-World Drilling Co.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 772 F.2d 157
• Docket Number: TRANS-WORLD,No. 84-3870,84-3870
• Parties: Calvin J. SMITH, Plaintiff-Appellant, v.DRILLING COMPANY, Defendant-Appellee. Summary Calendar.
• Decision Date: 30 September 1985

Page 157

772 F.2d 157 Calvin J. SMITH, Plaintiff-Appellant,
v.
TRANS-WORLD DRILLING COMPANY, Defendant-Appellee. No. 84-3870 Summary Calendar. United States Court of Appeals,
Fifth Circuit. Sept. 30, 1985.

Page 158

Roberts, Katz, Baudier & Broussard, Martin L. Broussard, Jr., New Orleans, La., for plaintiff-appellant.

Deutsch, Kerrigan & Stiles, Christopher Tompkins, Howard L. Murphy, New Orleans, La., for defendant-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Page 159

Before REAVLEY, TATE, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

This is an appeal from a judgment denying plaintiff Calvin Smith's claims against defendant Trans-World Drilling Company (Trans-World) for negligence under the Jones Act, 46 U.S.C. Sec. 688, and under the general maritime law of unseaworthiness. We reverse the trial court's denial of Smith's directed verdict motion on the negligence claim, we affirm the trial court's denial of Smith's directed verdict motion on the unseaworthiness claim, and we remand for further proceedings in accordance with this opinion.

I. FACTS

Smith, a roustabout, was injured on June 26, 1982, when he fell while working on Trans-World's drilling rig number forty-seven. ¹ Smith fell from a height of ten to twelve feet while descending from an engine room roof on which he had been working, striking his back and head on a concrete deck. After a helicopter transported Smith to a hospital, he underwent three weeks of in-patient treatment and therapy as well as subsequent out-patient treatment.

Smith's fall occurred as he was attempting to cross from the engine room roof to the lower nearby roof of a storage shed. The engine room roof was constructed of several tin panels bolted together on a slight incline to form a peak. The engine room was separated from the storage shed by an open-air gap of thirty-three inches. A twelve inch diameter exhaust pipe extended from the engine room wall about eighteen inches below the edge of the sloping roof across this gap and connected to a large metal tubular muffler unit that rested atop the storage shed's flat roof. There was no railing on the pipe nor on the engine room roof. The supply shed roof had around its edge a forty-five inch high aluminum railing, the top of which was on an even plane with the top of the exhaust pipe.

Both parties agree that the exhaust pipe was used by roustabouts to go to and from the engine room roof. According to the uncontradicted testimony of two of Trans-World's witnesses, a fellow roustabout and a crane operator, the exhaust pipe was often so used. The fellow roustabout testified that the exhaust pipe was used as a means of going to or from the engine room roof up to four or five times a week.

Smith's fall occurred as he stepped on the exhaust pipe. At the time, Smith was one of four roustabouts who were removing roof panels from the engine room roof. As it began to rain, they covered the open portion of the roof with a canvas tarp and began to descend by use of the exhaust pipe as a walkway to go from the engine room to the supply shed roof. Smith was the last of the four to descend because he had paused to secure the tarp. When he stepped on the exhaust pipe, Smith fell as he "was reaching for a railing hoping some was there."

Smith filed suit for damages against Trans-World for Jones Act negligence, for unseaworthiness, and for maintenance and cure under the general maritime law. Trans-World denied these claims and affirmatively pleaded that Smith's injuries were caused or contributed to by his own fault. At a jury trial after the close of all the evidence, Trans-World moved for directed verdict on the negligence and unseaworthiness claims on the ground of insufficient evidence, and on the maintenance and cure claim on the ground that Smith had reached maximum cure. Smith then also moved for directed verdict on the negligence, unseaworthiness, and maintenance and cure claims. The motions were denied. The jury returned verdicts for Trans-World on the negligence and the unseaworthiness claims, and found that Smith had reached maximum cure. The jury did not answer the interrogatories as to Smith's contributory

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negligence or as to damages. The trial court entered judgment for Trans-World. Smith did not move for judgment n.o.v. or for new trial. Smith now appeals the denial of his directed verdict motion on the negligence and unseaworthiness claims. ²

II. STANDARD OF REVIEW

A threshold question exists as to whether this Court may examine the evidence for sufficiency notwithstanding Smith's failure to move for judgment n.o.v. under Fed.R.Civ.P. 50(b). Trans-World argues that such failure precludes examination of the sufficiency of the evidence upon which the jury's verdict was based, and cites Delchamps, Inc. v. Barkin, 429 F.2d 417, 418 (5th Cir.1970). Trans-World suggests that Smith's motion for directed verdict is inadequate by itself to preserve issues of the sufficiency of the evidence.

We disagree. While Delchamps, as well as the case cited on this point in Delchamps, Parker v. American Oil Co., 327 F.2d 987 (5th Cir.1964), recite the proposition that an appellate court may not test the evidence for sufficiency absent a motion for judgment n.o.v., closer examination reveals that in both cases the verdict loser also failed to move for directed verdict. ³ Both cases recognize that a directed verdict motion, such as the one made by Smith, is adequate to preserve sufficiency of evidence issues on appeal. The prerequisite for testing the sufficiency of the evidence on appeal is a proper motion at trial for a directed verdict. See, e.g., Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1037-38 (5th Cir.1970), cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2536 (1971).

We must next determine the proper standard of review of the denial of Smith's directed verdict motion. This Court, in Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 100 (5th Cir.1985), has now determined that the proper standard of review of a seaman's motion for directed verdict on a Jones Act negligence claim is the "reasonable man" standard of Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). The Boeing standard is also appropriate for a seaman's directed verdict motion on an unseaworthiness claim. See Springborn, 767 F.2d at 96; Robin v. Wilson Brothers Drilling, 719 F.2d 96, 98 (5th Cir.1983). Under Boeing, Smith would be entitled to a directed verdict...