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March 10, 1970

Jesse D. FLEMING, Plaintiff,

Levet, District Judge.

The opinion of the court was delivered by: LEVET

LEVET, District Judge.

This is a seaman's action, based on alleged negligence and unseaworthiness, to recover damages for injuries to plaintiff's left hand.

 Pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, the issue of liability was tried to court and jury. In a special verdict, the jury held that defendant was negligent in respect to the condition of a certain table top or the lack of a guard on a circular saw in the carpenter's shop on board the SS Constitution and that such negligence was a proximate cause, in whole or in part, of the accident sustained by plaintiff with respect to his left hand on December 12, 1967. The same special verdict supported unseaworthiness. The jury also concluded that plaintiff had been contributorily negligent to the extent of 20%. After trial on the issue of damages, the same jury rendered a special verdict for plaintiff for the following: (a) Loss of past wages $ 4,300 (b) Loss of future wages 15,000, which was based upon an average annual loss of $1,942.50 for a period of 10 years following the date of trial. A 5% discount reduced the amount to $15,000. (c) Past pain, suffering and disability 5,700 (d) Future pain, suffering and disability 10,000. This resulted in a gross amount of damages of $ 35,000, which was reduced by the 20% deduction for contributory negligence, to $ 28,000.

 At the end of plaintiff's case on liability, defendant moved to dismiss the complaint and for a directed verdict on the ground that plaintiff had failed to prove a case (107). The motions were renewed at the end of the entire case after the damage verdict (429). The court reserved decision on these motions (115, 437). After trial on the damage claims, *fn1" the defendant moved to strike plaintiff's claim for any loss of wages after November 7, 1968 on the ground that there was no proof of diminution of plaintiff's earning ability after that date and no proof that any job available to plaintiff, even with a good hand, would net plaintiff more in the future than he is actually earning (367). This was, in essence, a motion for a directed verdict as to this element of damages. Decision was reserved (368).

 After the jury verdict on damages, the defendant moved to set aside the damage verdict as excessive and for a new trial on the grounds that (a) the award of damages for future loss of earnings is not supported by the evidence; (b) the awards for pain, suffering and disability were grossly excessive; and (c) the jury's determination as to the percentage of plaintiff's contributory negligence was against the weight of the credible evidence (429-432, 439).




 Plaintiff's contentions as to liability of the defendant were based on the condition of a certain circular saw and saw table top as the same existed in the carpenter's shop on board defendant's vessel, SS Constitution, where plaintiff, the ship's carpenter, was required to work. The specific negligence and unseaworthiness alleged consisted of two claims -- (1) that the said table top was defective, and (2) that the circular saw lacked a guard.

 The particular occasion on which plaintiff was using this saw grew out of an order by the chief officer to make a shelf for the captain (28). *fn2" A diagram with specifications was handed to plaintiff (29). Plaintiff, taking the diagram to the carpenter's shop, took a piece of 3/4" plywood approximately 4' x 8' which he cut to size (3' x 1 1/2') with a portable hand saw (69-70). He then prepared to make a "dado groove" 3/8" deep along the length of the board by use of the table saw (74). While cutting this groove, plaintiff sustained his injuries. He testified that as he was standing forward of the table saw with the teeth of the saw spinning towards him (76), he placed his left hand on top of the board and to the left of the saw blade, feeding the board towards the blade with his right hand (80). Plaintiff's words were as follows:

"When it got to a distance that I couldn't go any further with it, I reached to turn off the saw, holding one hand, my left hand on the table, on the wood securely, reached to turn off the saw and apparently I put too much weight or pressure on the table and the top went ajar, the wood -- the teeth jammed in the project that I am cutting, bringing it back, and the momentum throwing my hand into the blade, my left hand, and the momentum threw my hand into the blade. That is as simple as I can put it." (80-81)

 In respect to notice, plaintiff testified that he requested repairs on the saw during the early part of 1967 (67) and complained that there was no guard on the saw blade (63, 65, 67). He said he last reported the alleged defects "five or six months before [the accident]" in approximately June of 1967 to the then chief officer whose name he could not recall (62, 63).

 To support his contention as to the alleged defects in the table saw, plaintiff called one Louis A. Bogumil, Sr., a carpenter's mate on board the same vessel, who testified that he had used the table saw some six or eight months prior to December 1967 to make certain cuts and that there was no guard (51, 58).


 The defendant called Richard Finocchio and John Murray, who alternated as chief officer on the SS Constitution. Either Finocchio or Murray was assigned as chief officer during the period from March 1966 until the vessel was laid up in September 1968 (136). Finocchio and Murray each denied that he had ever observed any defects, or received any complaints of defects, or requests for repairs, either orally or in writing, from plaintiff, from the union or from any other source (28, 123-124, 137-138). As to the condition of the saw and table top, Finocchio testified that immediately after the accident he had proceeded to the carpenter's shop to visually inspect the table saw and that it appeared to be in good order (40-41). He also stated that he wrote out his investigation report (Ex. 1), using the table top of the saw as a desk, and that it did not shift under his weight (127-128).

 Another witness for the defense, second mate Louis Cafiero, a wood hobbyist, testified that during June of 1967 he used the table saw to make several straight cuts on wood; that he used the saw with the permission of plaintiff, who did not warn him of any defects; and that he himself did not observe any defects (144-145).

 A carpentry expert, one Mauritz Ommundsen, called by defendant, testified that it was not necessary to have a guard on this type of table saw for a grooving operation (170); that a guard would be more of a hindrance than a help during such operation (171); and that plaintiff could have used his portable Skil saw to make a groove if he wanted "to rig up for it" (174). Defendant points out that plaintiff himself considered the table saw safe (plaintiff's testimony, 89).

 The defendant contends that the testimony in this case does not sustain a finding that the alleged defects were a proximate cause of the injuries and that, on the contrary, the overwhelming proof is that plaintiff's own negligence was either the sole cause for his injuries or was the cause to an extent greater than the 20% found by the jury. Defendant refers specifically to the following:

 (a) Plaintiff failed to inspect the fittings that held the table top (plaintiff's testimony, 103). This, defendant claims, is peculiarly significant since plaintiff asserts the shifting of the table top as a cause of the accident.

 (b) It was plaintiff's job to inspect the table saw (104).

 (c) Plaintiff failed to tell the chief mate Finocchio, when plaintiff was asked to do the job, that the ...

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