Medina, Moore and Feinberg, Circuit Judges.
Out of a simple accident in 1964 aboard the William A. Reiss has come an unusually complicated case. Injured in the accident was plaintiff Peter Hartnett, a longshoreman employed by Grain Handling Company, Inc. Plaintiff sued both The Reiss Steamship Company, the owner of the vessel, and International Milling Company, a company involved in unloading the ship. Reiss impleaded plaintiff's employer, Grain Handling, as third-party defendant; Grain Handling and the two original defendants all made various claims against each other. The trial was held before John T. Curtin, J. and a jury in the United States District Court for the Western District of New York. In the first phase of the trial, plaintiff was awarded judgment against defendant Reiss for unseaworthiness and against defendant International for negligence in the sum of $17,424, representing plaintiff's damages diminished by his one per cent contributory negligence found by the jury. At this point, the trial judge proceeded to the various remaining claims. On claims for indemnity by shipowner Reiss, he found that International was a stevedore as a matter of law, but submitted to the jury the issue whether Reiss had prevented International from fulfilling its warranty to Reiss of workmanlike performance; the judge ruled as a matter of law that Reiss was entitled to indemnity from Grain Handling. He then also submitted to the jury the liability of Grain Handling and International to each other on their cross claims. The jury found Reiss entitled to be indemnified by International and found Grain Handling and International "jointly responsible" as between themselves.
Both plaintiff Hartnett and shipowner Reiss are apparently satisfied with the judgment below, since neither appeals. International and Grain Handling do appeal, however, and raise a number of contentions. We have considered them all; we affirm the judgment of the district court which held International and Grain Handling equally liable, on this record an obviously sensible result.
The William A. Reiss carried a cargo of grain for International from Duluth, Minnesota to Buffalo, New York. When the vessel arrived in Buffalo, it docked beside International's grain elevator, where the latter directed the location of the mooring and the opening of the hatches for the discharge of grain. The unloading was done initially by use of a mechanical "leg," essentially a series of buckets on an endless belt which scoop up the grain; the leg was lowered from the elevator into the grain in the hold and carried the grain into a tower. An International employee, called a leg man, supervised the unloading operation into the tower from aboard the vessel. When the grain in the hold reached too low a level, it became necessary to send other men, called scoopers, into the hold to move the grain by use of mechanical shoveling equipment to within the reach of the mechanical leg. The scoopers, including plaintiff, were longshoremen employed by Grain Handling. Evidently, the custom of the port is that Grain Handling supplies the men on a portwide basis, and the elevator (in this case, International) supplies the machinery and equipment necessary for this task at the site.
The accident to plaintiff occurred on the morning of November 26, 1964. On the previous day during a heavy rain, Grain Handling scoopers had emptied all but one corner of the hold where the accident occurred. When the scoopers left the hold, it was necessary to use a small portable ladder to get to the ship's starboard bulkhead ladder, which, like its counterpart on the port side, ended some distance above the deck of the hold. The next morning International made the decision to continue the unloading despite the rainfall, which apparently was continuing. Grain Handling's gang boss, whose job included inspecting the ship for unsafe conditions, did not go aboard the vessel that morning. Plaintiff was the first employee to enter the hold. Receiving no instructions to the contrary, and evidently forgetting the location of the portable ladder, he descended the port side bulkhead ladder, lost his footing on the last rung, fell into a puddle of grain and water, attempted to rise and fell again, and thus sustained the injuries in suit.
II. CLAIMS OF INTERNATIONAL
Appellants International and Grain Handling advance a number of claims, some addressed to their liability vis-a-vis plaintiff or the ship, and some addressed to the judgment holding them equally liable. We deal with the claims of International first.
Claims relating to plaintiff
As already indicated, the issues in the case were sensibly decided in two steps. The first step resulted in a verdict for plaintiff against the vessel for unseaworthiness and against International for negligence.*fn1 International claims that (1) since it had no responsibility for the absence of a portable ladder at the foot of the bulkhead ladder, it was error to instruct the jury that this was a possible basis of negligence; (2) plaintiff failed to prove that it was negligence to unload in the rain; (3) even if it was, plaintiff failed to prove that his accident was proximately caused thereby; and (4) plaintiff suffered no real loss of wages because of money he received from a wage pool explained below.
As to International's first contention, the jury could have concluded from the evidence before it that International's employees waited for the vessel on the dock, directed its mooring, furnished the mechanical conveyors, all of the power and equipment, including the misplaced portable ladder, directed the opening and closing of the vessel's hatches and the movement of the vessel along the elevator dock, and generally -- with labor furnished by Grain Handling for work in the hold -- supervised the unloading of the vessel. Under those circumstances, the jury could properly find that a substantial share of the responsibility for the absence of the ladder belonged to International.
As to contention (2), International concedes that a jury could properly hold it responsible for unloading in the rain but argues that there was no proof that this was negligent, and that the court neither defined negligence nor explained plaintiff's burden of proof. These claims are simply not borne out by the record. The judge did define negligence and did set forth plaintiff's burden. In addition, there was evidence that on the morning of the accident it was raining, that the vessel's mate and International's deck boss discussed whether the hatches should be opened for unloading during the rain, and that International said to go ahead. The jury could have inferred from this that unloading in the rain, in these circumstances, was sufficiently risky so that it was necessary to consider the question, but that International went ahead despite the risk. We cannot say that as a matter of law this was not negligent.
International's contention (3) is that it was not reasonably foreseeable that rain water would accumulate in the hold, that neither plaintiff's employer, Grain Handling, nor the vessel would inspect the hold or correct the condition, as they allegedly should have, and that plaintiff would descend and break his leg as he did. While International cites impressive precedents, e.g., Palsgraf v. Long Island Ry., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928), they are inapposite. It seems clear that plaintiff was within the zone of danger caused by unloading the ship in the rain; there is nothing here so bizarre as the events leading up to the injury as Palsgraf. If unloading in the rain was negligent at all, as the jury was entitled to conclude it was, then it was negligent with respect to the longshoremen working in the hold, since that would be one of the logical places where sloppy conditions or an accumulation of water might be expected. Moreover, once International negligently created the dangerous condition in the hold, it ought to have foreseen the type of accident that did occur. The negligent failure of other persons to correct ...