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In action under 46 USCS Appx section 688 case should be submitted to jury if, on evidence presented, there is rational basis for inference that defendant was probably in some respect negligent, and that injuries complained of were partially caused by such negligence. Smith v Reinauer Oil Transport, Inc. (1958, CA1 Mass) 256 F2d 646, cert den 358 US 889, 3 L Ed 2d 117, 79 S Ct 133.
Proper course for trial judge in cases under 46 USCS Appx section 688 is to submit issues of fact to jury and rule later on issues of law in event that it becomes necessary to do so. Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604, 1963 AMC 574.
Due to policy of providing expansive remedy for seamen, submission of claim under 46 USCS Appx section 688 to jury requires very low evidentiary threshold; even marginal claims are properly left for jury determination. Leonard v Exxon Corp. (1978, CA5 La) 581 F2d 522, reh den (CA5 La) 586 F2d 842 and cert den 441 US 923, 60 L Ed 2d 397, 99 S Ct 2032.
Trial court properly submitted issues on seaworthiness of vessel to jury. Jussila v M/T Louisiana Brimstone (1982, CA5 La) 691 F2d 217.
Submission to jury under 46 USCS Appx section 688 is simply whether or not proofs justify with reasonable conclusion that employer negligence played any part, even slightest, in producing injury or death for which damages are sought. Carlton v M/G Transport Services, Inc. (1983, CA6 Ky) 698 F2d 846.
Fact finding does not require mathematical certainty, and to preserve plaintiff's constitutional right to trial by jury, any evidentiary basis for making of finding on issue of negligence under 46 USCS Appx section 688 should be submitted to jury. Diddlebock v Alcoa S. S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.
Judge does not share role with jury as trier of fact of claims arising from negligence under Jones Act (46 USCS Appx section 688) and from unseaworthiness under general maritime law. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.
622. Removal of issues from jury
Demand for jury trial by seaman suing under 46 USCS Appx section 688 operates as demand for jury trial by defendants, and removal of issue of damages from jury after trial of liability to them deprived defendants of right to jury trial. Yates v Dann (1955, CA3 Del) 223 F2d 64.
District Court did not err in withdrawing from jury count containing charges of unseaworthiness, as court in absence of diversity of citizenship had jurisdiction of issue of unseaworthiness only on admiralty side; plaintiff, having by counsel acquiesced in submission of unseaworthiness count to court on record, could not thereafter object because of adverse finding. Jesonis v Oliver J. Olson & Co. (1956, CA9 Cal) 238 F2d 307, 1956 AMC 1509.
Issue, in 46 USCS Appx section 688 cases, of whether plaintiff's employer is vessel owner or another, is to be taken from jury so as to avoid possibility of jury speculation whenever it appears that only one reasonable conclusion can be reached on evidence, even if district court is not "officially" sitting in admiralty; advisability of such procedure exists where issue primarily involves construction of written documents such as charter party and agency agreement. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.
When case was submitted to jury on special interrogatories which were first tendered to counsel and to which no objection was made, each party waived its right to jury determination of particular facts by failing to demand their submission; court may supply any deficiency in findings. Clary v Ocean Drilling & Exploration Co. (1977, WD La) 429 F Supp 905, affd (CA5 La) 609 F2d 1120.
623. Particular issues submitted
Fact that plaintiff is contributorily negligent is not complete defense, and, if possibility exists that any negligence at all by employer contributed to accident, case should go to jury. Lafont v Otto Candies, Inc. (1966, CA5 La) 369 F2d 38, 1967 AMC 2728.
Testimony of injured seaman alone, if believed, would establish that conditions were not normal and that excess mud was on drilling floor and lights, which is enough to require case to go to jury because as such there is no complete absence of probative facts supporting his position. Lambert v Diamond M Drilling Co. (1982, CA5 La) 683 F2d 935, reh den (CA5 La) 688 F2d 1023.
624. --Seaman's status
Question whether plaintiff was permanently assigned to barge should have gone to jury. Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
Trial court instruction is sufficient where although court focuses jury's attention on question of whether defendant remained seaman at time of his injury, court emphatically told jury that this was strictly question for them. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.
Though question of seaman status is ordinarily issue for jury, before issue may go to jury, injured worker must present evidence that he or she was assigned permanently to vessel or performed substantial part of work on vessel, and that duties performed contributed to function of vessel, accomplishment of its mission, or operation or welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.
Though question of seaman status is ordinarily issue for jury, before issue may go to jury, injured worker must present evidence that he or she was assigned permanently to vessel or performed substantial part of work on vessel, and that duties performed contributed to function of vessel, accomplishment of its mission, or to operation or welfare of vessel in terms of its maintenance during its movement or during anchorage for its future trips. Balfer v Mayronne Mud & Chemical Co. (1985, CA5 La) 762 F2d 432.
Whether worker meets criteria for crew-member status is ordinarily jury question. Munguia v Chevron Co., U.S.A. (1985, CA5 La) 768 F2d 649, reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 580, 106 S Ct 1272.
Question of whether longshoreman was ship repairer for purpose of assigning liability to barge owner rather than to plaintiff's employer is one for jury where jury could have concluded that plaintiff's activity at time of injury in pumping out barge was not repairwork. Gay v Barge 266 (1990, CA5 La) 915 F2d 1007.
Claim made by plaintiff under Longshore and Harbor Workers' Compensation Act (33 USCS section section 901 et seq.) for compensation benefits did not deprive plaintiff of right to jury determination of his seaman's status under 46 USCS Appx section 688. Oliver v Ocean Drilling & Exploration Co. (1963, WD La) 222 F Supp 843, 1964 AMC 374.
Issues of negligence and unseaworthiness in personal injury suits brought under 46 USCS Appx section 688 are factual issues for jury. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.
In action to recover for injuries sustained while employed as seaman, it was for jury to determine whether actions of vessel owner were those of reasonably prudent person under circumstances. Garcia v Murphy Pacific Marine Salvaging Co. (1973, CA5 La) 476 F2d 303.
Considering evidence of pool of oily water around tank on which plaintiff was working to skim oil sludge, extremely warm temperature in room, and fact that plaintiff both notified superior of these conditions and expressly asked for help, jury could reasonably have found that officer's direction to plaintiff to continue work without assistance constituted discrete act of operative negligence, and such finding was thus not inconsistent with finding that vessel was seaworthy. Calo v Ocean Ships (1995, CA2 NY) 57 F3d 159.
Even though issue of negligence may be close, court should not usurp function of jury. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538.
626. ----Defect in or use of appliances
Negligence with respect to door which closed on seaman's fingers was to be determined by jury. Howarth v United States Shipping Board Emergency Fleet Corp. (1928, CA2 NY) 24 F2d 374, 1928 AMC 397.
It is vessel's duty to provide safe working place for members of its crew and where evidence shows that it failed to do so and proof of circumstances from which it can reasonably be inferred that injury resulted from such failure, case is for jury. Sadler v Pennsylvania R. Co. (1947, CA4 Va) 159 F2d 784, 1947 AMC 636.
It is not negligence per se anytime hatch is left uncovered on board and ship does not provide protective devices where period for which hatch is uncovered is only short time and where oral warning was given to prove regarding possible hazard. Loehr v Offshore Logistics, Inc. (1982, CA5 La) 691 F2d 758.
Evidence of employer's negligence was sufficient to go to jury where seaman's claim was based on exposure to asbestos and there was testimony that relationship between asbestos exposure and lung disease was known in early 1920's and that inspectors aboard ferries in 1960's used masks and respirators; such testimony supported inference that harmful consequences of asbestos exposure were foreseeable during time when machinist worked aboard employer's car ferries. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.
It was for jury to determine whether mechanical device which caused injury to seaman was stopped as quickly as it might have been under different method. Anelich v The Arizona (1935) 183 Wash 467, 49 P2d 3, affd 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.
Plaintiff suing for injuries suffered when he missed his step while carrying heavy water hose aboard vessel and fell on ship's gangway, made out prima facie case for jury based upon defendant's negligent conduct, in that defendant should have foreseen that operation which he directed plaintiff to perform might require such speed as to induce plaintiff to attempt to carry all three sections of water hose at one time, due to fact that other crew members were preparing to remove gangplank in preparation for imminent sailing of vessel, and that weight and bulk of that burden, in combination with plaintiff's effort to hurry and his slightly built physique, might result in tripping and falling which occurred. Villaneuva v California Tanker Co. (1960, DC NJ) 187 F Supp 591.
In action under 46 USCS Appx section 688, jury decides whether doctor's negligence was proximate cause of injury, and they may do so both in absence of direct medical testimony on point, and, in certain circumstances, even counter to only medical testimony on causation, but jury is not permitted to speculate on proximate cause in absence of reasonably persuasive proof that negligence was probable cause of injury. Fitzgerald v A. L. Burbank & Co. (1971, CA2 NY) 451 F2d 670, 14 ALR Fed 525.
Cause of break in apparatus was question for jury. McGinn v North Coast Stevedoring Co. (1928) 149 Wash 1, 270 P 113.
629. --Fellow servant's negligence
In action to recover damages under 46 USCS Appx section 688 it was for jury to determine whether consequences of act of fellow seaman were reasonably foreseeable. Panama Agencies Co. v Franco (1940, CA5 Canal Zone) 111 F2d 263.
It was for jury to determine whether actions of fellow seaman contributed to injuries suffered by plaintiff seaman. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745.
It was for jury to determine whether fellow seaman acted negligently in causing injuries to plaintiff who brought action under 46 USCS Appx section 688. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801; Ranstrom v International Stevedoring Co. (1929) 152 Wash 332, 277 P 992.
Determination as to health of fellow seaman who shared plaintiff's cabin and possibility of plaintiff's having contracted communicable disease from him, were questions for jury determination. Gonzales v United Fruit Co. (1951, CA2 NY) 193 F2d 479.
In action to recover damages under 46 USCS Appx section 688 for injuries suffered by seaman, it was question for jury whether shipowners were negligent in that fellow seaman failed to inspect and clean tank before plaintiff seaman was directed to use its contents, which resulted in painful skin blisters after coming in contact with contaminated substance. Rodgers v Boland (1950, DC Pa) 92 F Supp 507.
In action brought under 46 USCS Appx section 688 to recover for death of seaman, it was question for jury to determine whether actions of master and crew were negligent and led to death of seaman. Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344.
It was for jury to determine whether injury had aggravated existent arthritic condition. Foster v Moore-McCormack Lines, Inc. (1942, CA2 NY) 131 F2d 907, cert den 318 US 762, 87 L Ed 1134, 63 S Ct 560.
It was for jury to determine whether seaman developed disease on vessel in action under, inter alia, 46 USCS Appx section 688. Wounick v Hysmith (1970, CA3 Pa) 423 F2d 873.
Complainant whose complaint stated claim under 46 USCS Appx section 688 is entitled to jury trial on question whether condition was aggravated by "anxiety and stress." Picou v American Offshore Fleet, Inc. (1978, CA5 La) 576 F2d 585.
631. --Seaman's contributory or comparative negligence
It is for jury to determine whether injured seaman had knowledge or notice of dangerous condition. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.
Contributory negligence of injured laborer was for determination of jury. American Sugar Refining Co. v Nassif (1930, CA1 Mass) 45 F2d 321, 1931 AMC 586.
Contributory negligence is jury question in action by seaman for injuries received from defect in wharf. Bailey v Texas Co. (1931, CA2 NY) 47 F2d 153, 1931 AMC 771.
It was for jury to determine whether injured seaman knowingly concealed prior existing physical disability. Rosenquist v Isthmian S.S. Co. (1953, CA2 NY) 205 F2d 486.
In action to recover damages for injuries suffered by seaman, there may be sufficient evidence that plaintiff was not contributorily negligent, such that those findings could be made as matter of law. June T., Inc. v King (1961, CA5 Fla) 290 F2d 404, 4 FR Serv 2d 796.
Issue of contributory negligence does not arise in suit under 46 USCS Appx section 688 unless jury finds defendant negligent. Nolan v Greene (1967, CA6 Ky) 383 F2d 814; Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.
Bosun who brought action for damages for personal injuries under 46 USCS section 688 was entitled to have jury rather than judge decide whether fault for accident was entirely that of bosun, either because wooden pellets used as temporary steps for moving heavy equipment could have been used safely, or because bosen was obligated, once he discovered unsafe condition, to notify Chief Mate. Diebold v Moore McCormack Bulk Transport Lines, Inc. (1986, CA2 NY) 805 F2d 55.
It was for jury to determine whether owner and employee both were negligent, and to apportion negligence. Williamson v Roen S.S. Co. (1957, DC Wis) 149 F Supp 787, 1957 AMC 1344.
In action under Jones Act (46 USCS Appx section 688), plaintiff is entitled to present issue of punitive damages to jury. Baptiste v Superior Court of Los Angeles County (1980, 2d Dist) 106 Cal App 3d 87, 164 Cal Rptr 789, cert den 449 US 1124, 67 L Ed 2d 110, 101 S Ct 940.
633. Special interrogatories
If jury gives inconsistent answers to special interrogatories, case must be remanded for new trial; answers should be considered inconsistent only if there is no way to reconcile them. Willard v The John Hayward (1978, CA5 La) 577 F2d 1009.
Omission of explicit definition of liability under Jones Act -46 USCS Appx section 688- from special interrogatory does not constitute reversible error where jury is charged correctly on law. Ardoin v J. Ray McDermott & Co. (1982, CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.
Jury in case involving claim of unseaworthiness negligence under Jones Act (46 USCS Appx section 688) must be instructed on 2 distinct theories; construct of special interrogatories should reflect independent characteristics of both causes of action and single interrogatory concerning amount of damages may be submitted where all of claimed damages stem from single event. Comeaux v T.L. James & Co. (1983, CA FC) 702 F2d 1023.
Instruction was improper in Jones Act action where it precluded jury, in determining whether plaintiff-engineer had performed substantial part of his work on vessel on which he had sailed from U.S. to Germany and back, from considering 6-month period during which vessel was in drydock for refurbishment in Germany on ground that vessel was out of navigation during such period. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.
Where seaman's case, in addition to claim under 46 USCS Appx section 688, was submitted to jury on theory of unseaworthiness under instructions which were incorrect, general verdict for plaintiff cannot be sustained. Russell v City Ice & Fuel Co. (1976, CA4 W Va) 539 F2d 1318.
Failure of trial judge in charge to jury in action under 46 USCS Appx section 688 to indicate that seaworthiness does not necessarily require accident-free vessel or one with best possible equipment along with charging jury vessel must be "reasonably fit" to be seaworthy is error requiring remand of award of damages for injury. Morton v Berman Enterprises, Inc. (1982, CA2 NY) 669 F2d 89.
In action brought under Jones Act by seaman injured during loading operations, trial court properly refused to give requested jury instruction on Pennsylvania rule (placing burden on shipowner to prove that ship could not have been cause of accident when vessel is operated in violation of statute), notwithstanding assertion that qualified deckhand did not have his credentials physically aboard ship as required by 46 CFR section 185.10, where there was no conceivable causal connection between violation and injury. Mathes v The Clipper Fleet (1985, CA9 Cal) 774 F2d 980, 19 Fed Rules Evid Serv 577.
Where negligence and unseaworthiness are tied together, judge must instruct on both; therefore, judge must give requested instruction on employer's duty to provide safe place to work as part of negligence charge, notwithstanding that similar instruction was given as part of seaworthiness charge. Yehia v Rouge Steel Corp. (1990, CA6 Mich) 898 F2d 1178, reh den (CA6) 1990 US App LEXIS 7841.
Trial judge's instruction, that seaman could not be found contributorily negligent if he was following orders of superiors even if he knew activity to be dangerous, where defendant contended that seaman was given general order to cast-off and not specific order to stand on bulwark, was disputed issue of fact. Earl v Bouchard Transp. Co. (1990, CA2 NY) 917 F2d 1320.
District court erred in refusing ship owner's requested jury instruction that stated "plaintiff will not be required to pay either state or federal income taxes on any judgment which may be awarded as result of this suit." Allred v Maersk Line, Ltd. (1994, CA4 Va) 35 F3d 139.
Where record showed no evidence on subject of medical or hospital treatment, and court instructed on elements of damages in plaintiff's suit under 46 USCS Appx section 688 without mentioning expenditures for medical and hospital treatment, refusal of defendant's requested instruction that there could be no recovery for medical and hospital treatment because plaintiff did not mention subject in his pleadings, was not error. Jennings v American President Lines, Ltd. (1943) 61 Cal App 2d 417, 143 P2d 349, reh den 61 Cal App 2d 430, 144 P2d 54.
Failure of trial court to instruct jury as to failure of shipowner to contact Coast Guard in rendering adequate medical assistance did not constitute reversible error since such instruction served no purpose but to buttress arguments to jury as to what constituted duty of reasonable care, which trial court had already covered in its general instruction. Barracliff v Maritime Overseas Corp. (1960) 55 Wash 2d 695, 349 P2d 1080.
635. --Preserving or failing to preserve error
In personal injury action, where there was neither testimony nor charge as to actuarial basis jury should employ in determining damages and information jury had before it differed markedly from information required, situation was one of those uncommon occasions when unpreserved trial court error would result in grave injustice if allowed to stand and controversy was remanded solely for redetermination of damages. Crador v Boh Bros., Inc. (1973, CA5 La) 473 F2d 1040.
In action by injured seaman under 46 USCS Appx section 688, defendant properly preserved for review objection to jury charge on basis that no evidence was presented as to amount of attorney fees, where defendant objected to charge at trial and renewed such objection at subsequent hearing. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.
In action to recover for death of seaman who drowned while attempting to rescue fellow employee, failure to give proper rescue charge constitutes plain error requiring reversal, notwithstanding failure to object. Furka v Great Lakes Dredge & Dock Co. (1985, CA4 Md) 755 F2d 1085, cert den (US) 88 L Ed 2d 112, 106 S Ct 136.
636. --Separate theories
It was not error on part of trial court to refuse to instruct jury on issue of theories of unseaworthiness, where finding by jury that there was no negligence effectively disposed of unseaworthiness contention. Campbell v Seacoast Products, Inc. (1978, CA5 La) 581 F2d 98.
When plaintiff seaman alleges both negligence and unseaworthiness, it is duty of trial court to instruct on each theory systematically and separately, making distinction clear. Gentry v States S.S. Co. (1961) 229 Or 233, 366 P2d 880.
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Another NTLA Top 40 Under 40 member (like our own Amy Woodward) recently recovered a settlement of $23.5 million for the family of a couple hit head-on by a large commercial delivery truck that negligently swerved across the center line into oncoming traffic. The driver was a sales clerk who had no training driving commercial vehicles and should not have been behind the wheel of that truck. Burley v. Sassin (Brazoria County, Texas)