The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Plaintiff Carl Akermanis, a licensed marine engineer, brought this action against his former employer, defendant Sea-Land Service, Inc., to recover for damages allegedly caused by an accidental injury suffered on board defendant's vessel LOS ANGELES on June 4, 1977. The complaint stated causes of action for unseaworthiness, and for negligence under the Jones Act, 46 U.S.C. § 688. The Court dismissed the unseaworthiness claim at the conclusion of plaintiff's case. Defendant's motion to dismiss the negligence cause of action was denied, defendant offered evidence, and that cause of action was submitted to the jury in the form of a special verdict. The jury found that defendant's negligence was a proximate cause of plaintiff's accident, and assessed damages of $ 150,000 for past pain and suffering, $ 100,000 for future pain and suffering, $ 160,000 for past lost earnings, and $ 118,000 for future lost earnings. The damages consequently totalled $ 528,000. Finally, the jury found that the contributory negligence of plaintiff contributed to the accident in the amount of 4%.
The Court entered judgment in plaintiff's favor for $ 489,514.61. This amount reflected the 4% reduction for contributory negligence, and a 2% discount on future damages, the parties having offered no proof on the relevant economic issues. Doca v. Marina Mercante Nicaraguense, 634 F.2d 30, 40 (2d Cir. 1980). The judgment bore interest at 6% per annum.
Defendant now moves pursuant to Rules 50 and 59, F.R.Civ.P., for an order granting defendant judgment n. o. v., or in the alternative a new trial, or in further alternative a remittitur. Plaintiff cross-moves to amend the judgment so as to provide for interest at 9%.
Plaintiff was 59 years old at the time of the alleged accident. He had been going to sea since 1936. After service in the United States Navy, he obtained his first marine engineer's license in 1946, and, until the date of his accident, sailed continuously in the Merchant Marine since that time. He obtained a chief engineer's license in 1957. At the pertinent time, however, plaintiff was sailing on board defendant's vessel LOS ANGELES as a third assistant day engineer, having joined the vessel in that capacity on March 31, 1977.
The theory of plaintiff's case was that, on the morning of June 4, 1977, he was assigned to do burning and "finishing" work on deck. The LOS ANGELES was then on a voyage from Persian Gulf ports through the Mediterranean, bound for Rotterdam. On the date of the accident, she had passed through the Strait of Gibraltar, and was navigating in the North Atlantic. Plaintiff's work consisted of using a torch to burn off the top of an iron pedestal, containing a deteriorated support bracket for a turnbuckle, which was in turn used to secure one of the movable cranes of the vessel while at sea. Plaintiff contended that the place in which he was working was unreasonably unsafe because the working of the vessel in the seas had wetted the decks with spray, rendering the deck area slippery. (Plaintiff, in his testimony, was not specific about the physical cause of the accident about to be related, but his contention through counsel, articulated throughout the case and advanced with the assistance of expert testimony at the trial, was that wind-blown spray from waves had rendered the deck area hazardous for work.) Plaintiff was working on top of hatch covers near the port edge of the coaming, between the number 9 and 10 hatches. He testified that as he was burning the top of the pedestal with his torch, he lost his balance, struck his head on the pedestal, and that then his head was jerked backwards as he fell. Plaintiff alleged a severe and permanent injury to his cervical spine, resulting in his inability to work again as a merchant seaman.
Defendant's theories of the case were (1) no accident had occurred, rather plaintiff was asserting a pretext to recover damages before retiring; and (2) whatever symptoms plaintiff had suffered, or was suffering from, resulted from other physical conditions and maladies, not related to the alleged accident.
Plaintiff testified at the trial. The chief officer and chief engineer of the vessel testified by deposition. In addition to these lay fact witnesses, there was an extensive amount of medical evidence. The medical evidence took the form of deposition testimony by plaintiff's post-accident treating physician, an orthopedist; hospital records relating to a number of hospitalizations of plaintiff and consequent treatment, both prior and subsequent to the accident; and the usual medical expert witnesses, retained by the parties to give evidence at the trial.
The opposing papers on the present motion rehearse at length the parties' contentions, factual, medical, and legal. In passing upon defendant's motion for judgment n. o. v. under Rule 50(b), I must view the evidence in the light most favorable to plaintiff. The standard is different on a motion for a new trial under Rule 59; a new trial motion may be granted even if there is substantial evidence to support the jury's verdict, and the trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner. Bevevino v. M.S. Saydjari, 574 F.2d 676, 677, 683-84 (2d Cir. 1978). However, even within the Rule 59 context, the moving party must satisfy the trial judge that the verdict was contrary to the weight of the evidence; and the Second Circuit in Bevevino specifically approved the standard set forth by a leading commentator that the trial judge should "abstain from interfering with the verdict unless it is quite clear that the jury had reached a seriously erroneous result." Id. at 684, quoting 6A Moore's Federal Practice, P 59.08(5), at 59-160-59-161 (1973).
Implicit in this standard is the rule that "a trial judge should not act merely as a "13th juror' and set a verdict aside simply because he would have reached a different result had he been the trier of fact." Borras v. Sea Land Service, Inc., 586 F.2d 881, 887 (1st Cir. 1978). It has also been said that "courts have long been, and should be especially reluctant to overturn a jury finding of negligence in an F.E.L.A. case." Morgan v. Consolidated Rail Corp., 509 F. Supp. 281, 285 (S.D.N.Y.1980), and cases cited. This last observation is pertinent because Jones Act cases are governed by F.E.L.A. principles.
Viewed in the light of these standards, defendant is not entitled to judgment n. o. v., or, with the exception of the contributory negligence issue discussed under Point II infra, to a new trial. The accident either occurred or it did not. Defendant argued that the evidence showed plaintiff did not report the incident, and that he had attained the level of full retirement benefits, from which defendant asked the jury to infer that plaintiff had invented the accident in order to finance a more comfortable retirement. The jury was entitled in law to draw that inference; but it was equally entitled to believe the plaintiff's account of what happened to him, as it clearly did. I do not regard the jury's conclusion as seriously erroneous. Having observed plaintiff's demeanor and listened to his testimony, I do not believe that he fabricated the accident.
On the question of defendant's negligence, plaintiff's expert witness testified that the prevailing conditions of wave, wind, and the vessel's motion through the seas resulted in spray on the deck which rendered the area unsafe for the designated work. Plaintiff testified that the chief engineer directed him to perform the work. The chief officer's duties included supervision of work on deck with a view to safety. There is no basis, under either rule, to disturb the jury's finding that defendant's negligence contributed to the accident.
Finally, the jury was entitled to conclude, from the mass of medical evidence, that the accident caused an injury to plaintiff's cervical spine, permanent in nature, which, when superimposed upon whatever prior conditions plaintiff suffered from, constituted the cause of a permanent disability to work as a marine engineer. The Public Health Service treating physician, Dr. Miller, during the course of a lengthy deposition, gave such testimony (Dep. Tr. 87, 88, 95, 96); a comparable opinion was expressed by plaintiff's trial expert, Dr. Golub, who attached particular significance to a reversal of the upper cervical curve which he detected in the x-rays.
There was, of course, contrary evidence from the two medical expert witnesses defendant called at trial. The jury could have accepted those opinions; it could also have drawn certain of the inferences which defendant's counsel asked it to draw from plaintiff's voluminous medical history. But again, the jury elected not to do so; and it is a necessary function of lay jurors to choose between conflicting medical opinion. In addition, the jury was entitled to consider the fact, stressed by plaintiff's counsel in argument, that notwithstanding the previously existing conditions stressed by defendant, plaintiff had worked without significant interruption at sea for many years prior to the accident in suit. Defendant's riposte, as previously noted, was that plaintiff had decided it was time to retire, and wished to augment his pension. But the jury was also entitled to credit plaintiff's testimony -- as did I -- when, in responding to that suggestion by defendant's counsel on cross-examination, he stated in substance that he loved the sea, it was his home, he knew no other, he had not intended to retire, and badly missed going to sea.
These considerations are fatal to defendant's motion for judgment n. o. v. under Rule 50, on the questions of liability and causation discussed. Within the context of defendant's motion for a new trial under Rule 59, I could disturb the jury's findings on these issues only if I acted as an impermissible "13th juror," which I decline to do, because I am not persuaded that they were "seriously erroneous."
The question of substance that arises, on this aspect of the motion, relates to the jury's finding of 4% contributory negligence. As noted supra, there is no basis for disturbing the jury's findings that the area in which plaintiff was working was unsafe by reason of spray on the deck, and that defendant's supervising officers, who directed plaintiff to perform this work, knew or should have known of the hazard. But defendant argued that plaintiff, a man of many years' experience at sea, and the holder of a chief engineer's license, was equally able to appreciate any danger, and that he could have, by an alternate course of conduct, avoided the danger.
To sustain a theory of contributory negligence, defendant was required to demonstrate something more than plaintiff's proceeding in the face of an apparent hazard. A theory of negligence, so limited, is the legal equivalent of the defense of assumption of the risk, which is not available in cases of this nature. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257-58 (2d Cir. 1973). It is necessary for the defendant to demonstrate "an act of negligence other than (plaintiff's) knowledge of the dangerous condition," such as a failure to take an alternate route which would have avoided the hazard. Id. at 258. That is to say, "the defense of contributory negligence requires evidence of some negligent act or omission by the plaintiff other than his knowledgeable acceptance of a dangerous condition." Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir. 1980), citing Rivera, supra. "A seaman may not be denied recovery because he proceeds in an unsafe area of the ship or uses an unsafe appliance in absence of a showing that there was a safe alternative available to him." Tolar at 1195.
In the case at bar, defendant perceives the requisite safe alternative in plaintiff's testimony that the project of replacing the on-deck fittings had been going on for a period of a week, ten days, possibly longer than that; that plaintiff had been preparing some of the replacement fittings while the vessel was in the Mediterranean; and that the weather in the Mediterranean "was real beautiful then." It further appears from the evidence that plaintiff, while given a number of projects as assistant day engineer, exercised a considerable degree of personal control as to which project he would work upon at what time. It is further established from the evidence that the accident occurred on a Saturday, which was an overtime day, and that plaintiff was not required to work on that day at all, unless he wished to accrue overtime. From these facts, essentially undisputed, defendant argues that plaintiff could have performed this work while the vessel was still sailing in the beautiful weather of the relatively sheltered Mediterranean; or, the vessel having progressed into the North Atlantic, he could have deferred the work until a different time if the weather conditions at a given moment created a hazardous condition. This theory finds arguable support in the following testimony given by the plaintiff on cross-examination:
"Q. This project of cutting off and replacing these pedestal supports was an ongoing thing, correct?"
"Q. It had been going on for a period of time, perhaps a week, ten days, maybe more?"
"Q. You were doing that when it was convenient and you were doing other things when it was convenient and you were doing the routine things one after the other as you chose, correct?"
"MR. THALER: I object to form."
"A. Like, working those pedestals, when it was good weather, I could cut all those gadgets off, get ready to weld these new parts over it, because they had already made three or four of them. I don't know who made them. I could put those on in good weather and when it was bad weather I could-they didn't take long to make it. You don't have to work for days. I could make four, five in one day or maybe six, maybe all eight." Tr. 28-29.
Against this record, the Court charged the jury, without exception, on the issue of contributory negligence in pertinent part as follows:
"In this case, in order to establish that the plaintiff was negligent, the defendant must prove an act of negligence other than the plaintiff's knowledge of a dangerous condition in the area of his work. That is because under the law, the plaintiff did not assume the risk of his employment. That is, ...