APPEAL from the Circuit Court of Madison County; the Hon.
VICTOR J. MOSELE, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Federal Barge Lines, Inc. (Federal) appeals from a judgment entered in favor of first mate Willard Newton for personal injuries allegedly caused by the unseaworthiness of Federal's towboat, M/V United States. The issues on appeal are: (1) whether the trial court erred in denying Federal's motion for judgment n.o.v.; (2) whether the trial court erred in excluding evidence of an incident involving plaintiff and a cabin boy; and (3) whether the trial court erred in refusing an instruction tendered by Federal dealing with provocation as contributory negligence.
The head and neck injuries upon which this action was based were sustained by Newton in an attack upon him by a deckhand. Newton's complaint in the trial court asserted two theories of liability, negligence under the Jones Act (46 U.S.C. § 688 (1970)) and unseaworthiness under general maritime law. The unseaworthiness claim was based on Federal's alleged act of employing "a person who was dangerous and vicious in disposition."
The cause was tried before a jury in the circuit court of Madison County, and at the close of plaintiff's case, Federal made a motion for a directed verdict. In the face of this motion, Newton withdrew his allegations of negligence, and the court denied the motion with respect to the claim of unseaworthiness. The jury returned a verdict in favor of Newton in the amount of $88,000. Federal's post-trial motion which sought in part a judgment n.o.v. was denied, and Federal brought this appeal.
The record reveals that on September 22, 1973, Federal's towboat, the M/V United States, was moving a tow of barges down the lower Mississippi River. Among its crew were Willard Newton and Jack Epps, both of whom were seamen of long standing. Newton, as first mate, was the person in charge of the United States' deck crew, and Epps was a deckhand under his supervision. Newton had continuously held the job of first mate with Federal since 1963 or 1964.
The deck crew of the M/V United States had three primary jobs: to manipulate the barges as necessary to add them to the tow or drop them off at their destinations; to maintain the coupling system which held the barges in a tight formation; and to keep the barges from taking on too much water.
The coupling system is checked four times a day at the beginning of each six hour shift. The coupling between barges consists of wires, cables and ratchets. The crewmen start from the towboat, which is pushing the tow, and work their way out, checking the couplings and tightening the wires and cables as necessary. Tightening is achieved by inserting an iron rod known as a "toothpick" into the end of the ratchet to hold the screws stationary, tightening the ratchet by hand and then tightening it a second time with the assistance of a "cheater bar" which is placed over the ratchet handle to provide additional leverage. A characteristic cheater bar is a steel or iron pipe, three feet in length and two inches in diameter. According to Newton and Epps, it weighs somewhere between eight and 15 pounds.
Newton testified that he and deckhands, Jack Epps and Frank Vaught, began checking the couplings at the start of the noon watch on September 22, 1973. A loose wire was found in the coupling of a leaking barge on the first line away from the boat. Epps asked Newton what he wanted done about it, and Newton told him to finish checking across the line and they would change the wire before moving on. While the deckhands were busy checking the other couplings, Newton made some adjustments to a pump that was operating on the damaged barge. He did not have any tools. When Newton looked up, he observed Epps moving on to the next row of barges. Newton shouted at Epps, asking him where he was going and telling him to come back.
Newton stated that as Epps approached him, he carried his cheater bar over his shoulder. Newton asked him why he had left the coupling when they were going to change the wire. Epps responded, "I ain't the God damn mate. I'm not supposed to know what to do." Plaintiff replied, "I am the God damn mate, and I told you what we was going to do before we left."
According to Newton, Epps was four feet away when this exchange was completed. Newton then saw Epps quickly reach for his cheater bar with his right hand. Believing he was going to be struck by Epps, Newton ducked but was struck anyway. Newton was rendered unconscious by the blow for several minutes, and when he came to he was bleeding profusely from a three inch gash on his head.
The record indicates that Epps immediately informed the towboat's captain, William Estes Wright, about the incident and was put ashore at his own request about one hour later. Around 7:30 p.m., the vessel reached Natchez, Mississippi, and Newton was taken to a hospital for treatment. His wound was sutured and his head was X rayed, revealing the presence of a two- or three-inch linear fracture. Newton did not return to work until eight months later and has experienced post-traumatic headaches and dizziness ever since.
The testimony of Jack Epps was presented by evidence deposition. On direct examination Epps stated that Newton had previously told him not to rehook the wire and tighten the ratchet on the leaking barge, but as he started out for the next row of couplings, Newton called him back and began using abusive and profane language towards him about the rigging. According to Epps, he became "sort of overheated" when Newton used this language and stepped back and swung the cheater bar like a baseball bat, hitting Newton in the head.
On cross-examination, Epps testified that when Newton cursed him he asked him to stop using such language. At that point, Newton stepped up close to Epps and Epps concluded from his facial expression and the motion of his arms that Newton was going to slap him. Believing this to be the case, he struck Newton with the cheater bar. When asked to describe Newton's arm movements, Epps stated that Newton had not drawn back as if to throw a punch but "had his hands stretched out and behind him sort of, in a way." Epps corroborated that Newton had nothing in his hands when Epps struck him, and stated that this was the only time he had ever struck anyone with anything.
Epps also related that on a prior occasion, he had accidentally dropped Newton's suitcase into the river as Newton was going ashore, prompting ...