Before SWAN and CHASE, Circuit Judges, and SMITH, District Judge.
This is a libel in Admiralty to recover damages for personal injuries sustained by libellant, a prospective employee of the ship, in falling through an open hatch when he tripped over an unidentified object in a passageway beside the hatch.
The case was tried to the jury pursuant to the Great Lakes Act, 28 U.S.C.A. § 770 (1946): 28 U.S.C.A. § 1873 (1948), and decree entered on a verdict in favor of the plaintiff in the amount of $50,400, reduced by the jury from $56,000 by 10% for libellant's contributory negligence.
Special findings were made by the jury at the Court's request, as follows: R.P. 324.
"Did the ship, its officers or crew fail to provide a passageway along the outboard side of the ship at No. 6 hatch that was reasonably safe for the use under all the circumstances?" The answer is "Yes."
"Was Miller guilty of any negligence contributing to his fall? Yes."
"If so, what per cent of the damages should he stand because of his own negligence? 10 per cent."
"If you have found that Miller was guilty of contributory negligence, have you deducted his percentage of the damages from the total damages? Yes."
From the decree in favor of libellant claimant appeals.
A previous action under the Jones Act, 46 U.S.C.A. § 688, was dismissed after verdict for the plaintiff in the amount of $77,000 because he had not become a seaman before his injury. Miller v. Browning S.S. Co., D.C., 73 F.Supp. 185, affirmed 2 Cir., 165 F.2d 209.
The appellant complains (1) of the denial of a motion to dismiss at the close of the evidence, (2) of error in the admission of evidence of a claimed custom to replace the outside hatch cover after the unloaders "struck skin," the custom not having been pleaded, (3) error in the charge, (4) error in the apportionment of damage, 90% to the ship, and (5) error in the excessive amount of damages.
Libellant was an oiler who had been ill in a hospital and out of work for a period of some two and one-half months. He left the hospital on the day of his injury, reported at a union hiring-hall, and was referred to the Sultana to seek employment, the ship having requested an oiler of the union. He walked about three-quarters of a mile to the ship, carrying a barracks bag and small grip. The ship was docked with its starboard side in, discharging a cargo of grain. About 12:30 o'clock, P.M., libellant climbed a ladder up the side of the ship, making two trips to bring both his bags up. He then started aft on the starboard side, with the barracks bag over one shoulder and the grip in the other hand. After passing several hatches he crossed between two hatches to the port or outboard side of the ship and turned aft again in a passageway between No. 6 hatch and a pile of hatch covers piled against the port rail of the ship. The width of the passage between the hatch coaming and the pile of hatch covers was between twenty and twenty-four inches. The leg of the elevator and a number of employees of the elevator, who were unloading the ship and were not under the ship's control, were in No. 5 hatch at the time, having finished No. 6 hatch about 11:30 o'clock, A.M. No. 5 and No. 6 hatches both opened into No. 2 hold. Some grain had been spilled in the passage alongside No. 6 hatch.
Libellant stumbled over some object about a step and a half after entering the passage and fell into the ...