Before Clark*fn* , Smith and Hays, Circuit Judges.
Defendant shipowner, American Export Lines, appeals from a verdict of $197,261.45 rendered against it in favor of a seaman, Ammar, in a suit under the Jones Act, 41 Stat. 1007 (1920), 46 U.S.C. § 688 (1958). Plaintiff has filed a cross-appeal complaining of the reduction of damages because of plaintiff's contributory negligence and of the exclusion of certain home nursing expenses in the determination of defendant's liability for maintenance and cure*fn1
Plaintiff was the victim of two accidents. The first occurred on November 29, 1959, when he fell from a platform while working on his ship. The second occurred on July 20, 1961, some 20 months later, when he rode a motorcycle into a wall. Plaintiff's claim with respect to the second accident was that it was caused by a blackout which resulted from a brain injury incurred in the first accident.
The issue of liability for the first accident was submitted to the jury by special interrogatories on two theories, unseaworthiness and negligence. The jury was unable to agree on unseaworthiness, but found that defendant was negligent and that this negligence was the proximate cause of plaintiff's brain injury. The plaintiff was found free from contributory negligence with respect to the shipboard accident and damages were assessed at $11,000. As to this part of the action, there is no real controversy on this appeal.
After the shipboard accident and as a result of his brain injury plaintiff suffered recurrent blackouts. He was advised by Public Health Service doctors that the blackouts would eventually stop. The last blackout that he experienced prior to the motorcycle accident occurred two months before the accident, in May 1961. On July 20, 1961, plaintiff, who was not working because of an unrelated injury, mounted a friend's motorcycle, went into a skid from which he recovered, and, then, after traveling perhaps seventy feet, crashed into the wall of a house. Plaintiff explained that he had blacked out after coming out of the skid. Defendant introduced evidence to contradict plaintiff's claim that the motorcycle accident was the result of a blackout and argued that, if plaintiff had blackouts, then he had been negligent in boarding a motorcycle, knowing of his susceptibility, and also because he was unfamiliar with the operation of the particular model of motorcycle.
The injuries which plaintiff incurred in the second accident were extremely severe. His spinal cord was severed, resulting in total quadriplegia.
The jury found that the defendant's negligence with regard to the shipboard accident was a proximate cause of the motorcycle accident and that plaintiff's damages were $455,216.67. However, the jury found further that plaintiff was contributorily negligent as to the motorcycle accident and that 59.64 percent of plaintiff's damages were attributable to such contributory negligence. Applying this percentage the jury rendered a verdict for plaintiff for the second accident in the sum of $183,725.45.
On this appeal defendant relies chiefly*fn2 on the claim that the district court erred in not instructing the jury on the issue of "foreseeability" with respect to the second accident.
The word "foreseeability" has a number of different meanings in the law of torts and the concept is one of variable and shifting content.
We can derive the meaning which the defendant attaches to the word from his argument that the second accident was not foreseeable because, as the jury found, intervening negligence of the plaintiff contributed to that accident. If foreseeability is a material element of the plaintiff's case then this argument would require granting judgment for the defendant as a matter of law. But defendant also argues, somewhat inconsistently, that whether plaintiff's intervening negligence would make the second accident unforeseeable is a question of fact for the jury under proper instructions.
In charging the jury the court separately discussed the unseaworthiness and negligence theories of liability. As to unseaworthiness the court indicated that the plaintiff was required to prove that any unseaworthiness was a proximate cause of injury to plaintiff, and proximate cause was defined as:
"a direct causal connection between the ship's unseaworthiness and the plaintiff's injury. To constitute a proximate cause not only must the cause actually contribute to the result, but such a cause must not be a remote one. It is a cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, ...