Before FRANK, LUMBARD and WATERMAN, Circuit Judges.
On May 14, 1952, defendant's vessel South America, a Great Lakes passenger steamer, was undergoing final fitting-out in preparation for its first sailing of the 1952 season. Plaintiff, a stewardess aboard the vessel, was going about her duties when she slipped on a stairway outside one of her assigned cabins and fell to the deck, breaking her arm and suffering other injuries. The stairway consisted of three steps, with full length handrails on either side. The steps, which had been painted several days previously with grey deck paint, were of steel construction with a diamond safety tread pressed into the steel. Plaintiff testified that the steps were damp from rain, that the safety tread had been filled by repeated painting, and that the steps were smooth and exceedingly slippery. She admitted that she had used the same and identical steps many times over six previous seasons and that she had safely negotiated them several times on the day of the accident.
The complaint, brought at law, stated two causes of action: (1) negligence under the Jones Act, 46 U.S.C.A. § 688, and (2) maintenance and cure under the general maritime law. In addition, the complaint alleged that plaintiff's fall and resulting injuries were caused by defendant's negligence in "maintaining, equipping, and providing said vessel with a freshly painted shiny and smooth, excessively slippery step."
Although the record contains some confusing language to the effect that plaintiff was relying solely on a theory of negligence, the trial judge apparently considered the above-quoted allegation as properly raising an issue of unseaworthiness under the general maritime law.*fn1 Consequently, both negligence and unseaworthiness were simultaneously tried to a jury in accordance with the customary practice in this Circuit.*fn2 The maintenance-and-cure count was not submitted to the jury but tried to the judge, who awarded plaintiff $800.00 in addition to $1,576.03 which she had already received.
At the close of the plaintiff's case, defendant moved for a directed verdict on the issue of negligence, on the ground that no negligence had been shown, and, in addition, moved for a directed verdict on the issue of unseaworthiness, on the grounds that there was no unseaworthiness because the vessel was not in navigation at the time of injury and that there was no proof of unseaworthiness. The trial court denied both motions after counsel for both plaintiff and defendant had stated their respective views in opposition to and in favor of the motions. At the end of the case, after all the evidence had been received, the defendant renewed his motions, and they were again denied. Subsequently, the trial judge apparently changed his mind on the motion for a directed verdict on the issue of unseaworthiness, for he charged the jury as follows: "* * * It is my view that the evidence does not show that the ship itself was unseaworthy. That is my instruction as to the evidence in the case." The negligence issue was then submitted to the jury, which returned a verdict for defendant.
On this appeal plaintiff does not question the award for maintenance and cure, but seeks a new trial on negligence and unseaworthiness. She relies for reversal on the following alleged errors: (1) the action of the trial court in directing a verdict on the unseaworthiness claim, and (2) an instruction to the jury that the defendant could comply with its duty of due care by acting in accordance with the common practice in the industry. Defendant contends that these alleged errors should not be considered on appeal because they were not properly raised below, and, alternatively, that they do not constitute reversible error.
Before turning to these questions we will consider the jurisdiction at law of the court below over the unseaworthiness phase of the case. We do so because it is a jurisdictional question, which we can and should consider on our own motion,*fn3 and because recent decisions of this and other federal courts have evidenced concern over the jurisdictional basis of admiralty claims brought on the law side of federal district courts.*fn4 Although this is a jurisdictional question, the only significance it has is with respect to the mode of trial, since there is always jurisdiction in admiralty over an unseaworthiness claim. 28 U.S.C. § 1333.
In Paduano v. Yamashita Kisen Kabushiki Kaisha, 2 Cir., 1955, 221 F.2d 615, we held that there was no federal-question jurisdiction at law over a claim founded on the general maritime law.*fn5 If that decision is to be adhered to, some other basis for jurisdiction at law of the court below over the unseaworthiness claim must be discovered. There are several alternative possibilities: First, if diversity of citizenship is present and the amount in controversy exceeds $3,000, federal district courts have common-law jurisdiction of unseaworthiness claims. 28 U.S.C. § 1332. Unlike the vast majority of diversity cases, the law applied is the federal maritime law rather than state law. Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143; Cannella v. Lykes Bros. S.S. Co., 2 Cir., 1949, 174 F.2d 794, 796, certiorari denied 338 U.S. 859, 70 S. Ct. 102, 94 L. Ed. 526. The result, when there is diversity, is that a seaman can try claims of negligence and unseaworthiness simultaneously to the same jury. Second, if the vessel involved is a Great Lakes vessel "of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes," either party can demand and receive a jury trial in admiralty on an unseaworthiness claim. 28 U.S.C. § 1873. Since a seaman is entitled to a jury trial on a negligence claim under the Jones Act, 46 U.S.C.A. § 688, the result is that he can obtain a jury trial on both claims. Although one claim (unseaworthiness) is technically in admiralty, and the other (negligence) at law, there would appear to be no procedural objection to trying them both simultaneously to the same jury. Indeed, since the factual components of the two claims are virtually identical, it would be foolish to require separate trials. A third possibility is that of pendent jurisdiction. The Jones Act claim for negligence and the maritime claim for unseaworthiness provide seamen with two different grounds of relief for the commission of the same wrong. A judgment on one claim bars a second suit based on the other claim. Baltimore S.S. Co. v. Phillips, 1927, 274 U.S. 316, 321, 47 S. Ct. 600, 602, 71 L. Ed. 1069. Since both claims are based on the same operative facts, they constitute a single "cause of action." Baltimore S.S. Co. v. Phillips, supra; American Fire & Casualty Co. v. Finn, 1951, 341 U.S. 6, 12-13, 71 S. Ct. 534, 95 L. Ed. 702. Because of the extremely close relation of the two claims and the virtual identity of their factual components, it is arguable that a federal district court, having properly taken jurisdiction at law under the Jones Act over the negligence claim, has jurisdiction at law over the closely related unseaworthiness claim. See Hurn v. Oursler, 1933, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148, the controlling case on pendent jurisdiction, in which the Supreme Court held that where there is only one cause of action and jurisdiction is based upon a federal question, two or more grounds for relief may be urged, and, if the federal question is substantial, the federal district court has jurisdiction over the entire cause of action. See Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834, 840, note 5, and Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662, 670-671.
We need not here decide whether there is jurisdiction at law, under the Hurn v. Oursler doctrine, of a pendent claim of unseaworthiness when combined in one action with a substantial and related claim under the Jones Act, since it affirmatively appears from the record that plaintiff "lives" at Kenmore, New York, that defendant is an Indiana corporation, and that the amount in controversy is well in excess of $3,000.*fn6 Since the district court had jurisdiction at law over the unseaworthiness claim because of diversity of citizenship, the plaintiff was entitled to have both her claims submitted to a jury.*fn7
Turning to the merits of the case, we think that the trial court erred in directing a defendant's verdict as to unseaworthiness.
There was evidence from which the jury could have found that the steps were so painted and maintained as to be excessively slippery, especially when covered with water from a rain. We think this was a sufficient showing of unseaworthiness to entitle plaintiff to go to the jury. See e.g., Krey v. United ...