The opinion of the court was delivered by: COOPER
IRVING BEN COOPER, District Judge.
Defendant American President Lines, Inc. ("American") moves for an order granting it judgment notwithstanding the verdict or, in the alternative, a new trial, pursuant to Rules 50 and 59, Fed.R.Civ.P.
Plaintiff Guerrero brought this action to recover damages for personal injuries sustained on August 30, 1970 while loading cargo for a stevedoring company aboard defendant's vessel, the SS PRESIDENT HARDING. Guerrero, in carrying out his work assignment, was injured on that day when he slipped on grease aboard the vessel. In so slipping, Guerrero came into the path of cargo hooks which were swinging back to the dock. A cargo hook hit him on the back of the neck and head and rendered him unconscious.
We presided over the jury trial which determined the issues herein; it lasted from January 15 to January 20, 1975. The jury found unanimously in Guerrero's favor in the amount of $200,000. In answers to special interrogatories submitted by the Court, the jury found American negligent, its vessel unseaworthy, and Guerrero not contributorily negligent.
In its present motion American raises four claims of error. First, American contends that Guerrero failed to sustain his burden of proof on the issues of American's negligence or the unseaworthiness of the vessel. Second, Guerrero was contributorily negligent. Third, it was prejudiced by the Court's charge. Fourth, the jury's verdict was excessive. For the reasons that follow we reject American's contentions and accordingly deny its motion.
As to American's first claim of error: Where the motion is to grant judgment N.O.V. or to set aside a verdict which the jury has returned
[the] evidence must be viewed in the light most favorable to the party other than the movant. The motion will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him. Bernardini v. Rederi Aì Saturnus, 512 F.2d 660 at 662 (2d Cir., 1975); Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir. 1970).
Applying that test here, we reject American's first claim. Guerrero produced ample evidence of solid character to sustain the jury's verdict on the issues of negligence and unseaworthiness. To prove negligence on the part of American, Guerrero had to show that an unsafe condition existed aboard the HARDING and that American had notice of it. Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318 (2d Cir. 1973). Both requirements were fully met. The deck was proven to be unsafe. Plaintiff testified both on direct and cross examination that there were accumulations of grease in different places on the deck, "in all areas from which the winch ran over the deck to the railing." (Guerrero Aff., p. 2) Further, American had notice of the unsafe condition: the constant application of grease on the winches by a crew member for hours on end, the presence of a full complement of ship's personnel immediately forward of the site of the greasy condition, and "other factors of an unsafe place to work such as the absence of a place of sanctuary while the swaying four legs and hooks of the bridle were taken in by the burton winch to dockside" (Guerrero Aff., p. 3) -- all combined to give American notice of the unsafe condition aboard.
We hold also that Guerrero proved that the vessel was unseaworthy. Unseaworthiness exists when oil or grease on deck creates such a condition of slipperiness that the deck is no longer reasonably fit for its intended use. Rice, supra at 1321. In the instant case, there was substantial testimony describing how the incessant winch operation caused deposits of grease to form on many areas of the deck, creating a plainly unseaworthy condition. Keeping in mind the liberal attitude evinced by courts toward unseaworthiness claims, see Waldron v. Moore-McCormack Lines, 386 U.S. 724, 87 S. Ct. 1410, 18 L. Ed. 2d 482 (1967), Avena v. Clauss & Co., 504 F.2d 469, 472 (2d Cir. 1974) (dictum), coupled with the jury's specific finding of unseaworthiness, surely we cannot say, as a matter of law, that the unseaworthiness claim was not well established. Accordingly, American's first argument is rejected.
American's second claim is that Guerrero was contributorily negligent as a matter of law since he continued to work without either cleaning up or reporting the unseaworthy condition to a superior officer. See, Santomarco v. United States, 277 F.2d 255 (2d Cir. 1960). Failure to warn a superior officer of a dangerous condition can constitute contributory negligence where conditions almost imperceptibly and over a long period of time lead to an illness suffered by a seaman and where the danger presented was not immediately obvious to superiors. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 258 (2d Cir. 1973), citing Mroz v. Dravo Corp., 429 F.2d 1156 (3d Cir. 1970); DuBose v. Matson Navigation Co., 403 F.2d 875 (9th Cir. 1968). Here, in sharp contrast to Mroz and DuBose, the danger of the accumulated grease was "open and obvious to anyone . . . who cared to look." Rivera, supra 474 F.2d at 258. Further, Guerrero was not required to warn his superiors of the accumulated grease where to do so would be a futile gesture. Id. The Court's instructions to the jury on the issue of contributory negligence incorporated the essence of Rivera :
If you find that plaintiff knowingly accepted the risk of a dangerously slippery deck but that such acceptance was necessary for the performance of his duties, then plaintiff was not contributorily negligent. However, if you find that it was reasonable under the circumstances for plaintiff to warn his superior officers of the dangerous condition, and that he failed to do so, such failure may constitute contributory negligence.
On the other hand, plaintiff was not duty bound to perform a futile act, and if you find that the conditions on the vessel presented an open danger to anyone who cared to look, then he was not obligated to report such an obvious condition.