The opinion of the court was delivered by: CONGER
Plaintiff moves for a new trial, pursuant to Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the verdict of the jury in the above matter was against the weight of evidence and on the further ground that the court erred in its charge to the jury.
Defendant opposes, on the ground (a) that plaintiff's counsel did not at the time the jury was charged or when parts of the charge were later read to the jury at their request, object to the charge or take exception to any part of the charge; and (b) that the doctrine of res ipsa loquitur, alleged in plaintiff's moving affidavit to apply, does not apply here and that such a charge was never requested by the plaintiff; and, of course, defendant denies that the verdict of the jury was against the weight of evidence.
Plaintiff's husband was a member of the crew of the S.S. Parismina. He was injured on April 21, 1954. He died prior to the trial of the action of a cause not connected with his injury.
On April 21, 1954 the ship stopped at Balboa to take aboard the President of the Republic of Panama and his Cabinet. A dock-side gangplank was used. It was to be raised and attached by its cleats to the fishplate on the ship -- a small ridge into which the cleats of the gangplank would fit. The gangplank was raised by a hi-lo on the dock, under the direction of a dock master. There was conflicting testimony as to whether the directions to the dock master were given by a mate on the ship or whether the raising of a gangplank is considered so routine an operation that the direction of an officer is not required. In any event, it was essential to the operation that someone or more than one person on the ship guide the gangplank to the fishplate, and the testimony of the plaintiff in his deposition was:
'Q-8. Is it usual that you have to jockey the gangway back and forth until you get it into position? A. Yes.
'Q-9. At the time you were injured, you were pushing the gangway out; is that right? A. No, at the time I was injured I was swinging it over to get it in position.
'Q-1. Towards the railing, on the railing, the forward part of the scaffold? A. Too far to one side.
'Q-2. Too far aft? A. Yes.
'Q-3. And you were pulling it forward; is that right? A. Yes.'
Plaintiff's husband stated in his deposition that he had been at sea since 1944. It the testimony of the then Chief Mate of the vessel was believed by the jury, that the placing of the gangplank is routine and any seaman can do it, then the plaintiff's husband, in his years at sea, must be presumed to have become familiar with the operation, and he testified in his deposition that he had done that kind of work before.
However, as plaintiff's husband stated in his deposition, he had his left hand half-way up on the gangplank rail, of 3/4 way up, and grabbed to pull it over when his hand was squeezed against the upright, he felt pain in his thumb and found that part of his thumb had been amputated.
Plaintiff claims that an insufficient section of rail had been removed, that the mate had given improper directions to the dock master and had improperly supervised the work, that lines should have been attached to the upper ends of the gangplank and should have been used in guiding the gangplank into place instead of having the men hold the upper ends of the gangplank with their hands; that the men on the dock were negligent in the operation of raising the gangplank to its proper place on the deck and, generally, that defendant had not furnished plaintiff's intestate with a proper place to work.
I charged the jury at some length on the negligence question and, among other things, made the statement which is now complained of. In addition, plaintiff's attorney submitted to me some 32 requests to charge, some of which I charged and others I refused to charge.
There were no exceptions to my charge.
After the jury had been deliberating for some time they asked for instructions on the definition of negligence. I then charged on this question practically the same as I had in the main charge. In the charge, among other things, was the portion which is now objected to. There was no exception to this charge. Subsequently, the jury again came before me, stating that they were unable to agree and then the following took place:
'Juror No. 10: I didn't quite understand or I didn't remember in your charge anything about the swinging of the crane having any bearing on the case, I will be perfectly frank to say.
'The Court: I said that the mere fact that it came down and over against -- I will give it to you the way I read it.
'What I said was the fact that the gangway swung or that it was dropped is, in and of itself, insufficient to establish liability on the part of the defendant.
'Before the plaintiff is to recover he, the plaintiff, must prove negligence on the part of the defendant or those for whom the defendant is responsible.
'Juror No. 5: Do you want to try it again?
'Juror No. 10: All right, let's try it again.
'Mr. Ohrenstein: Your Honor, may I make a --
'Mr. O'Brien: Your Honor, if we are going to have colloquy I would like to have it outside of the hearing of the jury.
'Mr. Ohrenstein: May we approach the bench, ...