The opinion of the court was delivered by: CONGER
Action under Jones Act (46 U.S.C.A. § 688) by plaintiff to recover damages for personal injuries which he alleges occurred on or about the 15th day of August, 1954, while he was a member of the crew of the S.S. Constitution, owned and operated by defendant. The case was tried to the jury, who returned a verdict of $ 2,500 in favor of plaintiff. Defendant had moved for dismissal of plaintiff's complaint and for a directed verdict at the end of plaintiff's case. It also moved for the same relief at the close of all the evidence. I reserved decision on the said motions.
After the jury returned its verdict, defendant moved under Rule 50, F.R.Civ.P., 28 U.S.C.A., to set aside the verdict and for a judgment n.o.v., or, in the alternative, for a new trial on the ground that the verdict returned by the jury was clearly contrary to all the evidence, that there was no competent evidence at all upon which the jury could have found that the accident in question was the proximate cause of the herniated disc claimed by plaintiff.
I reserved decision on that motion to permit the attorneys to submit briefs.
Serious issues were raised at the trial (1) whether there was any negligence on the part of defendant, and (2) whether or not plaintiff's claimed injury was caused and brought about by said negligence. I am assuming, for the purpose of passing on these motions, that the negligence of defendant was proved. The jury so found and I believe there were sufficient facts upon which they could arrive at such a conclusion.
Plaintiff's testimony was that on the day in question he, with another sailor, was taking part in a fire drill while the vessel was tied up to its dock in New York Harbor and that he was in a lifeboat that was being lowered to the level of the main deck; that the lifeboat was stationary at one time and to keep the lifeboat close to the side of the vessel a frapping line was used. Plaintiff's testimony was that for some unknown reason the lifeboat started to go up at one end, putting a strain on the frapping line, which eventually parted. This caused the lifeboat to swing away from the vessel and away from plaintiff, who was suspended in midair, and as a result he fell and twisted around, grabbed the side of the lifeboat and pulled himself back into it. Thereafter he got to the deck of the vessel. That is a brief statement of plaintiff's claim as to what occurred on the day he was injured.
The real issue in the case at all times was and is whether there was any causal connection between the accident as testified to by plaintiff and the injuries claimed by him to have resulted from such accident. His claim at the trial was that he received an injury to his back which eventually was diagnosed as a rupture of an intervertebral disc in his spine. The facts most favorable to plaintiff as testified to and claimed to have been proved by him in this respect are as follows:
When he got to the deck of the vessel after the accident he sat on the deck and found that on one of his ankles there were abrasions and his ankle was bleeding a little; he saw the doctor on board, told him what had happened and was given treatment consisting of iodine and liniment for his ankles and feet. At that time he knew of no other injury. He went to work the next day and thereafter for the rest of the voyage. His ankle gave him no further trouble.
He stated that about two weeks later he began to have pain in his hip. He thought this was about the last part of August, 1954. He saw the doctor on the vessel, who gave him some pills; at that time he made no complaint to the doctor of any accident. Plaintiff apparently continued his work, which was that of a lookout and required no heavy lifting or handling of lines. He said the doctor aboard the ship told him to see a doctor when he got to New York, but plaintiff apparently continued working on the Constitution until just before Christmas, 1954, when he signed off and went to the United States Public Health Service as an outpatient. He was treated as an outpatient for about a month and finally was sent to the U.S. Marine Hospital at Staten Island, where he remained for about a month as an inpatient. The final diagnosis given at the hospital was 'herniated nucleus pulposus, left', and his condition marked 'Improved'.
Plaintiff relies, of course, upon the nature of the accident, the subsequent pain at least two weeks after the accident, and the records of the U.S. Public Health Service. There is nothing else in plaintiff's case, as I see it, which in any way connects his subsequent condition, discovered some time in February, 1955, with this accident. Plaintiff produced no medical evidence of any kind except the hospital records, and these hospital records relate only to the condition found either in December, 1954 or January and February, 1955.
Plaintiff does place reliance, however, upon defendant's medical testimony, and claims that this testimony supplied the causal connection. I place little reliance upon this. All that the doctor who testified for defendant said, as my notes indicate, was that trauma or a violent twisting of the back could cause a herniated disc. Dr. Michele, an orthopedic surgeon, examined plaintiff on May 23, 1956, on behalf of the defendant. He stated that a herniated disc could occur from many causes; that it was a product of degeneration. He did say, as I stated above, that the accident could cause a herniated disc. That is all he did say. He gave no opinion that it was so caused or probably was so caused, nor was he asked a hypothetical question upon which he might base an opinion.
At the end of plaintiff's case I reserved decision on defendant's motions because, frankly, I felt at the time that plaintiff had failed to make out a case. I feel more strongly now. There are other facts which should be considered.
In the first place, while plaintiff alleges in his complaint that the accident happened on or about August 15, 1954, on cross examination he stated that he was unable to say just when it did take place. He finally did say it might have happened some time in July. As a matter of fact, there was testimony on the part of the captain of the vessel that the vessel was in New York several times in August 1954 and that fire drills were held each time the vessel was in port, but that at no time during August 1954 were any of the lifeboats lowered from the deck or moved in any way. The log book of the vessel, introduced in evidence indicated that when the vessel was at its pier in New York in August no lifeboats were lowered during fire drills whereas, on April 20, 1954, during such a fire drill, lifeboats were lowered. There was also offered in evidence defendant's physical examination report of plaintiff, which contains an entry that on this same date, April 20, 1954, plaintiff was treated for contusion on his left ankle, but there was no record of any injury to plaintiff in July or August, 1954.
There should also be considered the fact that at the time of the accident plaintiff claimed to have felt no pain in his back or hip or leg; that he apparently continued to work without complaint; that about two weeks later, while he was at home in his bed, he suddenly felt pain in his hip; before that he had never had any pain in his back, his hips, or his legs; on that morning he reported aboard the vessel as it was sailing that day, saw the ship's doctor, told him nothing of the accident, but told him of the pain, which spread from his hip to his thigh, to his calf, and then to his foot, and that he had a numbness in his left leg.
At no time from the date of the accident down to and including his treatment at the U.S. Marine Hospital did he give a history to anyone of any accident previously happening to him. The history record at the hospital does contain the ...