Urti v. Transport Commercial Corporation, 72-2747.

• Decision Date: 22 August 1973
• Docket Number: No. 72-2747.,72-2747.
• Parties: Angel URTI, Plaintiff-Appellant, v. TRANSPORT COMMERCIAL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.2d 766 (1973)

Angel URTI, Plaintiff-Appellant, v. TRANSPORT COMMERCIAL CORPORATION, Defendant-Appellee.

No. 72-2747.

United States Court of Appeals, Fifth Circuit.

June 13, 1973.

Rehearing Denied August 22, 1973.

Charles J. Ferrara, New Orleans, La., Sol Gothard, Metairie, La., for plaintiff-appellant.

G. Edward Merritt, Benjamin W. Yancey, New Orleans, La., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge:

This case presents a challenge to the denial of a new trial. Angel Urti, plaintiff-appellant, was injured in the performance of his duties as a seaman aboard the S.S. Tamara Guilden. He filed suit against the owner of the vessel, Transport Commercial Corporation, for recovery under the general maritime law and under the Jones Act. The jury found that the shipowner was negligent, but that the ship was seaworthy. The jury further found that the plaintiff was contributorily negligent to the extent of fifty per cent of his damages. His motion for a new trial was denied. On appeal, Urti contends that there was no evidentiary basis for the jury's finding of contributory negligence and that the trial judge erred in not granting a new trial. The shipowner contends that, because Urti did not move for a directed verdict or for a judgment notwithstanding the verdict, he is precluded from challenging the legal sufficiency of the evidence for the jury's verdict. We hold that there is no evidence in the record tending to show contributory negligence and that the district court erred as a matter of law in denying a new trial. Accordingly, we reverse and remand for a new trial.

I.

On November 15, 1966, while aboard the S.S. Tamara Guilden in the port of Haifa, Israel, Angel Urti, the plaintiff, was ordered to paint draft numbers on the stern of the vessel. He was lowered over the side of the vessel in a pontoon. The bosun, operating the winch, lowered the pontoon at Urti's signal. To bring himself closer to the vessel, Urti used a two-inch breasting line which was attached to both the pontoon and to a padeye, a U-bolt, attached to the side of the vessel. The pontoon was supported by four one-inch wire lines attached to a bridle or ring which was in turn attached to the winch. The bosun told the plaintiff that he would slacken the wire lines, thus shifting more weight to the breasting line and causing it to become taut. This would naturally pull Urti closer to the ship. As the pontoon was being lowered in this fashion, the manila breasting line broke causing a shift in the position of the pontoon. The plaintiff fell forward striking his forearm and shoulder against the metal bridle or one of the wire cables.

The plaintiff alleged unseaworthiness on the basis of a defective rope. He also argued that the shipowner was negligent in assigning him an unsafe place to work, in providing him with unsafe equipment, and in assigning an insufficient number of men to perform this particular task. Both the plaintiff and the bosun testified that at least two more men were ordinarily required for this particular job.

When the motion for a new trial was argued the trial judge noted that there had been no challenge to the jury instruction on contributory negligence. He pointed out that "the subject might have better been taken up at that time, but once it goes to the jury, of course, I am extremely reluctant to say now that the jury was wrong on this thing." Although he denied the motion, the trial judge stated: "I think this is a case where I completely disagree with the jury's verdict but I will let the Fifth Circuit decide on the jury's verdict."

II.

At the outset, the appellee argues that this Court is precluded from a review of the "legal sufficiency of the evidence" because the plaintiff did not move for a directed verdict or for judgment notwithstanding the verdict. The plaintiff's failure to make these motions does not bar him from appealing on the ground that as a matter of law the trial court erred in not granting a new trial.

The function of the directed verdict and the judgment n. o. v. is to order a final verdict for the moving party, whereas the function of the new trial is to order a redetermination of the issues before a new jury. The motions for directed verdict and judgment n. o. v. require a district judge to decide whether, as a matter of law, the evidence, when considered in the light most favorable to the non-moving party, is legally sufficient to submit the case to the jury, or whether it is legally sufficient to support the jury's verdict. See Glazer v. Glazer, 5 Cir. 1967, 374 F.2d 390, 400; 6A Moore's Federal Practice ¶ 59.045, p. 3715 (1972). C. Wright and A. Miller, 9 Federal Practice and Procedure, ¶ 2531-32 (1971). See discussion, Marsh v. Illinois, 5 Cir. 1949, 175 F.2d 498. Those motions are similar in effect to a motion for summary judgment in that they challenge the existence of a genuine issue of fact and that they seek a final judgment. 6A Moore's Federal Practice, supra at 3715. See discussion, Cities Service Oil Co. v. Launey, 5 Cir. 1968, 403 F.2d 537. In contrast, the motion for a new trial invokes the sound judicial discretion of the district judge. "Although the evidence was legally sufficient to take the case to the jury so that a directed verdict was not justified, still, a new trial may be proper where the verdict is against the weight of the evidence." 6A Moore's Federal Practice ¶ 59.045, pp. 3715-16, ¶ 59.085.

Barring plain error, an appellate court may not grant a directed verdict or a judgment n. o. v. absent an appropriate motion in the district court. Johnson v. New York N.H. & H.R. Co., 1952, 344 U.S. 48, 50; 73 S.Ct. 125, 97 L.Ed. 77. That is to say, the appellate court may not review the "sufficiency of the evidence" and grant a final judgment in favor of a party who failed to so move. Hommel v. Jackson-Atlantic Lines, Inc., 5 Cir. 1971, 438 F.2d 307. "Sufficiency" here is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. An explication of the standards for determining sufficiency is set out in Boeing v. Shipman, 5 Cir. 1969, 411 F.2d 365. It is possible that "reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions," Boeing, 411 F.2d 374, while at the same time the verdict would be "against the great weight of the evidence." There are circumstances where a district judge might rationally deny the motions for directed verdict and judgment n. o. v., but grant the motion for a new trial. Planters v. Protection Mut. Ins. Co., 5 Cir. 1967, 380 F.2d 869, 881.

We have previously held that ...