Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-4640 -- George N. Leighton, Judge.
Before Swygert and Cummings, Circuit Judges, and Campbell, Senior District Judge.*fn*
This diversity suit was brought by a longshoreman seeking $450,000 for an injury he incurred in unloading cargo from defendant Motor Vessel TILLY RUSS owned by co-defendant Ernst Russ Steamship Company. According to the complaint, on December 4, 1976, plaintiff was working aboard the TILLY RUSS when it was moored at Navy Pier in Chicago. He alleged that when he was descending from a container on a ladder it gave way under his weight so that he was thrown eight feet to the lower deck of hatch 3, permanently fracturing his right foot's os calsis (heel bone). He charged that the ladder was part of the vessel's equipment and that defendants negligently failed to maintain the rubber heels at the base of the ladder. He claimed that he was exercising ordinary care at the time of the fall. In an amended complaint, plaintiff's wife was added as a co-plaintiff, and the ad damnum was increased to $600,000.
At the close of the evidence, the matter was submitted to the jury not only on the general verdict but also on special interrogatories under Rule 49(b) of the Federal Rules of Civil Procedure. The jury found that (1) defendant steamship company was negligent, (2) its negligence proximately caused plaintiff's injury,*fn1 (3) plaintiff was not guilty of contributory negligence, and (4) $180,000 would compensate him for his injury. Judgment for plaintiff was entered on the verdict. We affirm.
The evidence credited by the jury showed that on December 4, 1976, the Mid-States Stevedoring Corporation assigned plaintiff and other longshoremen to unload a cargo of containers in the No. 3 hatch of the TILLY RUSS. The vessel was loaded with containers from the floor of the lower hold to the top deck. The longshoremen would unload the containers by stepping from the upper deck to the tops of containers and hooking cables from the Stevedore's shore-side crane to the top of each container. When the longshoremen stepped off a container, the crane operator would lift it out of the ship to the pier. The longshoremen repeated this process with each container, working across and downward from the top to the bottom of the hold, unloading the containers in sequence. In their unloading work, the longshoremen used a ladder supplied by the Stevedore. This ladder was used by the longshoremen to descend from the top of each container after hooking a cable thereon.
When the longshoremen reached the bottom layer of containers in hold 3, there were five present: plaintiff, Orvey Ware, James Green, James Walton and Willie White. Plaintiff and one other longshoreman were on top of a container but the other three had already descended to the floor of the hold. Ware testified that he was in a hurry to get plaintiff and the other longshoreman down from the last two containers, one of which (container B) they had just hooked to cables from the shore-side crane. He noticed a metal ladder in the corner of the ship and placed it against the final container (container A) to be removed so that plaintiff could come down. The Stevedore's ladder was also leaning against that container. (See plaintiff's Exh. 59.) When plaintiff used the second or ship's ladder to descend from container A he and the ladder fell to the bottom deck of hatch 3.*fn2 The left safety foot was missing from the ladder, the right safety foot was in bad condition, the ladder itself was lopsided, and its right side was bent. The accident occurred at 2:30 p. m. in the absence of any members of the ship's crew. Just before the accident occurred, Ware and Green had climbed off other containers by using the Stevedore's ladder.
When plaintiff was taken to Northwestern Memorial Hospital, it was discovered that he had suffered a broken os calsis in his right foot. He was not able to return to work until eight months later. While working as a longshoreman on another ship on November 4, 1978, he was killed. A motion for substitution of parties was granted on March 6, 1979.
Standard of Care Owed by Shipowners to Longshoremen.
Defendants first argue that a motion for a directed verdict or judgment n. o. v. should have been granted under the so-called majority rule that a shipowner is not liable for injuries caused by a condition known to or open and obvious to a reasonably prudent longshoreman because shipowners need only exercise reasonable care under the circumstances to protect longshoremen against danger. This standard of care was recently adopted in Santos v. Scindia Steam Navigation Company, 598 F.2d 480 (9th Cir. 1979). However, this same standard of care was adopted by the district court because it employed defendants' instruction No. 29A providing as follows (Supp. App. 21-22):
"In this case the defendant shipowner had a duty to exercise ordinary care under the circumstances to place the ship on which the stevedoring work was to be done in this instance and the equipment and appliances aboard that ship in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he might reasonably expect to encounter arising from the hazards to ship's service or otherwise, would be able, by the exercise of ordinary care, to unload the cargo in a workmanlike manner and with reasonable safety to persons and property.
"A shipowner also has a duty to give the stevedoring contractor reasonable warning of the existence of any latent or hidden danger which has not been remedied and is not usually encountered or reasonably to be expected by an expert and experienced stevedoring contractor in the performance of the stevedore work aboard the ship, if the shipowner actually knew, or, in the exercise of ordinary care under the circumstances, should have known of the existence of such danger, and the danger is one which the shipowner should reasonably expect a stevedoring contractor to encounter in the performance of the stevedoring work going on.
"A shipowner is not liable to longshoremen for physical harm caused to them by any activity or conditions on the ship whose danger is known to the longshoremen or obvious to a reasonably careful man."
In view of this instruction, we need not consider whether the shipowner was liable under the so-called minority standard of care rule that a shipowner is not liable to invitees for physical harm caused to them by any activity or condition on the ship whose danger is known or obvious to the invitees unless the shipowner should anticipate the harm despite such knowledge or obviousness.*fn3 As seen, the minority view was not represented in the standard of care instruction proposed by the defendants and given by the district judge and would not in any event have been helpful to them.
Since the jurors found that defendants were liable to plaintiff under the foregoing instruction, they must have found that plaintiff's injuries were not caused by a condition known or obvious to a reasonably careful longshoreman. Also the jury specially found that plaintiff was not contributorily negligent. Accordingly, we cannot accept defendants' argument ...