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REYES v. GRACE LINE

October 5, 1971

Bienvenido REYES, Plaintiff,
v.
GRACE LINE, INC., Defendant


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Plaintiff moves to set aside the jury's verdict in defendant's favor rendered June 21, 1971 *fn1" in his action for damages allegedly sustained as a result of a fall from the gangway of defendant's vessel SS SANTA ROSA on August 20, 1967. We are asked to render judgment notwithstanding the verdict or grant a new trial pursuant to Rules 50(b), (c), and 59 of the Federal Rules of Civil Procedure.

 Interference with a jury's verdict calls for, and must be attended with, the exercise of extreme caution. *fn2" We are constrained here to grant the motion for a new trial.

 There is no contest with respect to extremely vital factual points (among others): that plaintiff was upon and precipitated from the gangway onto the concrete flooring below; that he sustained personal injuries directly resulting from this accident; that plaintiff's fall was exclusively the result of a sudden and violent movement of the gangway caused by an event of frequent occurrence -- the lifting from the dock end of the gangway (more often the complete removal of the gangway) in order to accommodate a passing loaded flat car which ran on the pier tracks.

 The crucial point before us, as both sides concede, is whether plaintiff in disregard of defendant's claimed warning went upon the gangway and thus placed himself in a position of peril. During the course of the trial, this issue was plainly and emphatically put before the jury by the parties; on its proper resolution rested justice in the case. Evidently the jury's determination of that crucial point was in defendant's favor. We believe it erred grievously thereby.

 Putting aside plaintiff's testimony and supporting evidence that no warning was given, our examination of those portions of the total trial record which defendant asserts conclusively damage plaintiff's position before us and foreclose relief to him, fails to disclose that the warning, if in fact given, was either timely or adequate. Thus, defendant's "Report of Personal Injury or Loss of Life" to the United States Coast Guard, dated August 24, 1967 (Plaintiff's Exhibit 8), signed by the Master, reveals under the item "description of casualty" furnished by one Rebic,

 
"While leaving the ship at hrs. 1505, C Deck Gangway, forward, port side, we were walking down the gangway, but while halfway down, the Quartermaster called "Watch Out" and a train coming very fast hit the gangway. The patient who was walking ahead of me, made a somersault forward and fell over the side of the gangway, onto the pier."

 Rebic's ex parte statement (Exhibit 10) includes,

 
"Q Do you recall hearing any warning?
 
A Yes.
 
Q Who gave the warning?
 
A The quartermaster.
 
Q Do you recall what he said?
 
A Yes. He said, "You are not supposed to be on the gangway now," and then he yelled "Watch out." That ...

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