Steinberg v. American Export Lines, Inc. , 81 F. Supp. 364 ( 1948 )

McGRANERY, District Judge.

Plaintiff brought suit for injuries allegedly received from an overdose of ammonia on defendant's vessel, joining a count under the Jones Act, 46 U.S.C.A. § 688, with one for unseaworthiness under general maritime principles. The case was submitted to the jury on two theories: defendant’s agent, a purser, was negligent in assisting a passenger who administered to the plaintiff, and the vessel was unseaworthy because not manned by a competent crew. After a jury verdict for plaintiff, defendant moved for a new trial, pressing in particular its objections to the charge. After carefully examining the record, I feel that a new trial should be granted. It was error to assume as a matter of law that the purser was the medical officer aboard ship in the absence of evidence as to the general nature of his duties or specific instructions he had received. This assumption may have prejudicially affected the jury’s evaluation of the purser’s conduct under either the negligence or unseaworthiness theory, if, indeed, the latter concept is applicable at all to these facts. Accordingly, therefore, an order will be entered granting a new trial.