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May 4, 1976

John MICELI, Plaintiff,

Irving Ben Cooper, District Judge.

The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

Plaintiff moves for an order granting him judgment notwithstanding the verdict, or alternatively, a new trial pursuant to Rules 50(b) and 59, Federal Rules of Civil Procedure.

 Plaintiff brought this diversity action against defendant IST to recover damages for personal injuries allegedly sustained aboard defendant's vessel, the M/S CONCORDIA FANA. Defendant IST impleaded third-party defendant Universal Terminal & Stevedoring Corp. Initially, plaintiff based his claim for damages upon two theories, defendant's negligence and the ship's unseaworthiness. During the course of the trial, plaintiff's negligence claim was dropped. Plaintiff's sole claim therefore, was that defendant's ship was unseaworthy in that a piece of plywood over which plaintiff was working failed to support his weight, causing his left foot to break through the wood. Plaintiff demanded damages in the amount of $250,000.

 We presided over the trial in this case which lasted from February 23 to February 27, 1976. The jury found unanimously for the defendant. By their special verdict, the jury found that the vessel was seaworthy and/or that any unseaworthiness which may have attended the vessel was not the proximate cause of plaintiff's alleged accident.

 In the present motion, plaintiff claims the evidence conclusively proved defendant's negligence and plaintiff free from contributory negligence; therefor plaintiff was entitled to a directed verdict. Alternatively, plaintiff seeks to vacate the verdict and asks the Court to order a new trial on the ground that the verdict herein was contrary to law, fact and the weight of the credible evidence (plaintiff concludes that the verdict was "just plain wrong."). (Lassoff motion at p. 12)

 Plaintiff Miceli, a longshoreman, testified that he was working in hatch # 3, lower tween deck aboard defendant's vessel, the M/S CONCORDIA, on the day of the alleged accident. (Miceli, direct, p. 3) That day, plaintiff and co-worker Carl Last, along with the other members of the work gang, were carrying cartons and cases of frozen shrimp to a pallet to be taken out of the hatch in which they were working. (Miceli, cross, p. 3) Miceli testified that at about 2:30 PM, he had placed a case of shrimp on the pallet and was in the act of turning and backing up when his left foot broke through a sheet of plywood a distance of about 18 inches. (Miceli, direct, pp. 7-8) Whereupon, plaintiff testified, he fell backwards injuring his back, right buttock, hip, right hand and left ankle. (Miceli, direct, p. 8) Plaintiff further testified he had not noticed anything wrong with the plywood flooring before it broke; that it had not broken previously. (Miceli, cross, pp. 6, 10)

 Immediately following the accident, Miceli was helped to his feet by two fellow workers and rested in the wing for ten or fifteen minutes. (Miceli, direct, p. 10) He then climbed two ladders and reported the accident to the timekeeper and safety man. (Miceli, direct, pp. 13-14) The latter, Mr. Gercken, wrote out a report based on a conversation with the plaintiff immediately after the accident; it supports plaintiff's testimony as to the facts surrounding the accident. (Gercken, cross, p. 17)

 Carl Last, a regular member of the work crew in the hatch where Miceli was working, testified that he had not seen plaintiff before the accident nor thereafter until the morning of the trial. (Last, direct, p. 3) At the time of the accident, Last was three or four feet away from the plaintiff and actually saw plaintiff's left foot break through the plywood. (Last, direct, p. 6) Last could not, however, recall seeing plaintiff's foot being extracted from the broken plywood. (Last, direct, p. 9) Last testified that after the accident he and another man helped Miceli up and sat him in the wing where he remained for ten or fifteen minutes before leaving the hatch.

 After Miceli left the hatch, the broken piece of plywood was allegedly replaced by wood boards. (Last, direct, p. 11; Last, cross, pp. 35, 69, 71, 72) The defective wood was never located. (Gercken, direct, p. 3)

 Plaintiff's case rested principally upon the testimony of two witnesses, Miceli himself and Carl Last. There were, in addition, exhibits documenting the extent of Miceli's injuries and subsequent treatment.

 Cross-examination of plaintiff and co-worker Last placed their credibility in controversy and raised a question as to whether the accident actually occurred or could have occurred as plaintiff testified.

 On cross-examination of Miceli, the evidence showed that the piece of plywood which allegedly broke was at all times in apparently good condition. (Miceli, cross, pp. 7, 9) Further, the construction and thickness of the plywood rendered it highly improbable to break under the weight of one man. (Miceli, cross, pp. 16, 10) Prior to the accident, the plywood in question was covered with stacks of cartons of frozen shrimp; yet this did not cause the plywood to break or otherwise crack. (Miceli, cross, p. 4) Although the plywood was continuously traversed by the work crew on the day of the accident, it did not break or crack before plaintiff's alleged fall. (see, e.g. Miceli, cross, pp. 14, 17) As already mentioned, the broken plywood was never found. (Gercken, direct, p. 3)

 Upon further cross-examination, evidence was adduced that there were voids or gaps created by the overlapping of wood which constituted the flooring over which the work crew unloaded the cartons of frozen shrimp. Viewed together with the aforementioned evidence that it was highly improbable that the plywood broke, and the fact that the broken plywood was never located, the inference was raised that perhaps plaintiff had tripped when caught in one of the gaps in the floor. This possibility was further bolstered by considerable evidence that plaintiff was injury-prone. (Miceli, cross, pp. 49-68)

 Plaintiff's credibility was further put in question when he admitted acquiring disability benefits from Social Security and concurrently claiming non-disability to "badge in" ("Badging in" is the process by which a longshoreman represents that he is fit ...

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