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February 4, 1959

John LYONS, Plaintiff,
UNITED FRUIT COMPANY, Agencia Maritima Hondurena, S.A., and Empresa Hondurena de Vapores, S.A., Defendants. AGENCIA MARITIMA HONDURENA, S.A., and Empresa Hondurena de Vapores, S.A., Third Party Plaintiffs, v. BETHLEHEM STEEL COMPANY, Third Party Defendant

The opinion of the court was delivered by: KAUFMAN

Plaintiff, John Lyons, moves to set aside a special verdict of the jury against him and in the alternative seeks judgment in his favor on this same verdict. Defendant Empresa Hondurena de Vapores (hereinafter 'empresa') has also moved for judgment on the verdict.

This action was brought by plaintiff to recover for personal injuries he sustained while working aboard defendant's vessel, and S/S Choloma, as an employee of Bethlehem Steel Company, the third party defendant. *fn1" On December 11, 1956, the day of the accident, the ship was tied up at Bethlehem's Hoboken, New Jersey shipyard for repairs. Plaintiff, an iron worker, was assigned to work in the port wing of the ship's large molasses tank. In order to leave the port wing, plaintiff had to pass over or near a large opening of the tank in the tween deck. The accident occurred when plaintiff slipped into this opening and fell 10-15 feet to the floor of the tank, sustaining serious injuries.

 It was plaintiff's contention that the accident was caused by inadequate lighting in the area of the accident and by the absence of a safe passageway across the opening into which he fell. He further claimed that his injuries resulted from the fact that the defendant was negligent in two respects: (1) Defendant negligently turned the ship over to Bethlehem in such a condition that plaintiff was not provided with a safe place to work and (2) Defendant breached its non-delegable duty to inspect the ship during the time the repairs were in progress, and to correct dangerous conditions. Although plaintiff originally also sought to recover under the doctrine of unseaworthiness, this theory was not pressed and was abandoned by plaintiff at the trial.

 Defendant Empresa impleaded the Bethlehem Steel Company, the plaintiff's employer, claiming the right to indemnity arising out of the agreement to repair the involved portion of the ship.

 With the consent of all the parties, I submitted the case to the jury on a special verdict. *fn2" A copy of the form containing the instructions and questions submitted to the jury and the jury's answers appears in the appendix to this opinion.

 The jury found that the accident was caused by an unsafe condition aboard the ship, but that defendant Empresa had not negligently transferred an unsafe vessel to Bethlehem. The jury, which had been instructed that defendant's duty to inspect for the correct dangerous conditioned existed only so long as it controlled the area in question, also found that defendant did not have control over the area of the accident at the time of plaintiff's fall. At that point there remained no grounds upon which defendant's liability and in turn the liability of Bethlehem could have been predicated. The jury did, however, go on to answer the remaining questions. The reasonable value of plaintiff's damages was found to be $ 30,000 diminished by 25% due to plaintiff's contributory negligence. The jury also found the accident to have occurred within Bethlehem's work area and as a result of Bethlehem's failure to perform its repair work with reasonable safety.

 Following the return of this verdict, I discharged the jury with the consent of all the parties.

 Plaintiff's Contentions

 Plaintiff not contends that: (1) The verdict should be set aside because of alleged inconsistencies in the jury's findings, and (2) The Jury's finding that the accident resulted from an unsafe condition, entitles plaintiff to judgment as a matter of law.

 A. The Claimed Inconsistencies

 The plaintiff's argument on this point is based on an alleged inconsistency between (1) the jury's finding that defendant was not negligent in regard to the condition of the ship at the time it was turned over to Bethlehem, and its further finding that defendant did not have control of the area of the accident, on the one hand, and (2) the assessing of damages on the other.

 It is plaintiff's contention that by assessing damages the jury necessarily found liability on the part of Empresa. This argument is based mainly on the following language in my oral instructions to the jury: 'However, you must assess damages under question (6) if the plaintiff has sustained his burden of proof as to either question (3) or question (5) because either one would give him the right to a recovery.' (p. 14 of charge.)

 Plaintiff also alludes to the following instructions contained in the typed question sheet following question (5). 'If your answer to both questions (3) and (5) is 'no' you will not answer any further questions.'

 I find absolutely nothing in the charge, the questions or in the jury's answers to support plaintiff's motion. It is obvious that when the jury found no control by Empresa and no 'original' negligence on Empresa's part (questions (2) and (4)), Empresa's non-liability had been established. Therefore, if the jury erroneously failed to follow instructions, and went on to assess damages, this was a totally meaningless act. That there were no inconsistencies in the jury's findings is shown by the fact that the jury also found that the accident was caused by Bethlehem's fault. Thus the jury probably believed that it was assessing damages against Bethlehem. In my charge I had told the jury that two law suits were being tried together. They may well have believed, in error, that this meant that they had to adjudicate the litigation between Bethlehem and Empresa and, therefore, answer the questions on damage and on Bethlehem's liability. This would represent a misunderstanding, on the jury's part, of the law of indemnity, but the very purpose of submitting this case on a special verdict was to prevent an erroneous general verdict through confusion on this difficult legal point. The fact that the jury's action demonstrated that a special verdict was indeed indicated in this case, is hardly grounds for invalidating it.

 Further, after a careful rereading of my charge and the questions submitted to the jury, I believe that the fact that the jury went on to assess damages indicates that they followed instructions, albeit with an excess of caution.

 It should be emphasized that the jury was never explicitly instructed not to assess damages under question (6) if they answered questions (3) and (4) in the negative. In the charge, I told them that they must assess damages if they answered questions (3) and (5) in the affirmative. The instructions on the question sheet indicated that they would answer no further questions if they answered questions (3) and (5) in the negative. Since question (5) was not answered at all, the jury apparently believed that this instruction was inapplicable. The jury then followed the instructions typed under question (4) which read: 'If your answer to question (4) is 'no', you will not answer question (5) but you will go on to question (6)'. (Emphasis supplied.) They, therefore, went on to question (6) and assessed damages.

 In any event, the argument based on the alleged inconsistencies is insignificant and without merit. The jury has returned its verdict which is crystal clear and intelligent, and strained and ingenious theories advanced by the plaintiff will not cause me to invalidate a ...

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