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Mcintyre v. Wood River Towing Co.





APPEAL from the Circuit Court of Madison County; the Hon. MOSES W. HARRISON II, Judge, presiding.


Defendant appeals from a judgment of the circuit court of Madison County which denied its post-trial motion for a new trial in a case wherein plaintiff sued under Title 46 U.S.C.A. § 688, commonly called "The Jones Act," and the general maritime law of the United States.

Defendant contends it is entitled to a new trial because (1) the trial court improperly instructed the jury that the evidence in the case failed to show contributory negligence as a matter of law; (2) the court erred in admitting into evidence subjective findings and complaints from a Dr. Robert Lam and a Dr. George Schoedinger, III; and (3) the trial court improperly sustained plaintiff's objection to impeachment of plaintiff on a 1963 felony conviction.

The plaintiff, Raymond McIntyre, was injured in September, 1970, while working for the defendant as a mate. At the time of the injury, the defendant's tugboat, the N/V DAN C, was moving a 12-barge tow through Lock 26, which is located on the Mississippi River at Alton, Illinois. The Dan C and its tow were headed downriver, and to continue downriver, it became necessary to maneuver the vessels through the Alton Lock. The general procedure for passing through the lock required the Dan C to push the entire tow into the lock. The tow was then divided into two parts or cuts because the tow was too large to pass through the lock as one unit. After dividing the tow, the Dan C reversed its direction and pulled half of the tow back out of the lock. The lock gates were then closed and the water level inside the chamber lowered to the level of the lower Mississippi River. Normally, the cut within the lock chamber would then be pulled through and out of the chamber by use of an electric winch. Having been pulled through the chamber, the lock gates would be opened, the cut would be disconnected from the winch and would be moved down between two retaining walls by the force of the current. Members of the crew aboard the cut would then throw a line around one of several 4" long and 3" diameter steel pegs imbedded in the retaining walls. The other end of the line would be figure-eighted around a cleat on the side of the barges and by alternately tightening and slackening the line the barges would be brought to a stop alongside the retaining wall. The procedure would then be duplicated for the second cut. The cuts would be recoupled and proceed downriver.

When the tow was divided into two parts, so was the crew. The personnel assigned to the first cut consisted of the plaintiff McIntyre, the mate who was to pilot the tugboat Maud, and two deckhands. Of the two deckhands, Hutcheson had more experience having joined the tow about two weeks previously. The other deckhand, Wallace, had only about two hours' experience. On this particular occasion, therefore, the captain of the Dan C decided not to utilize the electric winch because of a lack of sufficient manpower to stop the barges with lines after the winch had been disconnected. Instead of using the winch, the plan was to have a smaller tugboat, the Maud, pull the barges out of the lock chamber.

The tow having been divided, the first cut moved through the lock chamber. As the first cut was moving down between the retaining walls, both engines on the Maud apparently died. McIntyre radioed this information to the captain on the Dan C. The captain told him to attempt to restart the engine or try to catch a line. McIntyre called out to the two deckhands to catch a line. The deckhands, Wallace and Hutcheson, attempted several times to do so but were unsuccessful due to their lack of experience. The line repeatedly missed the pin and was dragged through the water. Meanwhile, McIntyre was attempting to restart the Maud's engines. When he was unable to do so, he left the Maud and went onto the barges to attempt to catch a line. By this time, the Maud and the barges were nearing the end of the retaining walls and the current was beginning to take the two out into the river. McIntrye threw a line and hit the very last of the steel pegs on the longer of the two retaining walls. The eye of the line looped around the peg and McIntyre wrapped the other end of the line twice around the cleat on the side of the barge. At this point there is some conflict in the testimony of McIntyre and Hutcheson as to exactly what happened. Hutcheson testified that the steel pin turned and bent. McIntryre did not see the steel pin bend or turn. At any rate, the line took the strain and popped off the peg. When it popped off the peg, it apparently sprang back and knocked McIntyre down injuring his back. McIntyre then grabbed another line and threw it around the piling. The line caught and the barge stopped.

McIntyre left the tow when it reached St. Louis and entered a hospital. In the ensuing months, plaintiff McIntyre contacted several physicians in connection with his back injury. The pertinent details of that treatment history will be discussed in connection with that portion of this opinion relating to defendant's contention of improper admission of certain medical testimony.

In October of 1970, the plaintiff instituted this action alleging that the defendant was negligent or its vessel was unseaworthy, or both. The complaint alleged that defendant failed to provide a reasonably safe place to work, failed to keep its engines in adequate and proper condition to operate and failed to provide plaintiff with sufficient and adequate help with which to perform his work.

At the trial, plaintiff testified that there had been recurrent problems with the engines of the Maud throughout the summer of 1970. These engine problems had been communicated to the chief engineer and the captain of the Dan C. Plaintiff testified that he, the chief engineer and the captain had relayed this information to the owners of the boat and that they had promised to deliver the needed parts. No repairs, however, were made to the Maud prior to this incident. According to the testimony of plaintiff McIntyre and of the deckhand Hutcheson, the plaintiff had no responsibility for the upkeep or repairs of the engines. Defendant offered no evidence to the contrary. At the trial, plaintiff also testified that he had complained to the captain about the lack of experienced manpower and that this complaint had been radioed to the company office.

At the conclusion of the proceedings, plaintiff's attorney submitted a peremptory instruction requesting the trial court to remove the issue of contributory negligence from the jury. The trial court granted plaintiff's request over the vigorous objection of the defendant.

It is undisputed that the burden of proving contributory negligence in this case rested on the defendant and that contributory negligence, even if proved, would not bar plaintiff's recovery but would only diminish the damages due him.

At the instruction conference, the defendant argued that plaintiff had been negligent in (1) failing to fulfill his duty as mate and pilot of the Maud to inspect the Maud's engines, (2) failing in his responsibility as the deckhands' supervisor to instruct the deckhands as to how to throw a line, (3) failing in his responsibility to select the proper line, (4) waiting too long to take action in catching a line after the Maud's engines quit, and (5) handling the line incorrectly.

There is no evidence that plaintiff failed in his duty to inspect the Maud's engines because there is no evidence that plaintiff had such a duty. The only evidence in the record relating to the engines of the Maud reveals that plaintiff had no responsibility for the upkeep and maintenance of the engines and that defendant fully informed the appropriate authorities of mechanical difficulties with the engines.

There is no evidence in the record that plaintiff failed in his responsibility to instruct the deckhands as to how to throw a line. First, there is no clear evidence that plaintiff had such a responsibility. Plaintiff did testify that when Wallace boarded the boat the owner of the boat had asked him to "help him [Wallace], try not to let him get hurt out there." Wallace, however, had only boarded the boat two hours before the incident. Furthermore, it should be remembered that the captain of the Dan C had recognized the inexperience of the crew and had, therefore, decided to have the towboat Maud pull the barges out of ...

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