Gаrcia, a crew member of the M/V Cable, sued the owner, Murphy Pacific, for personal injury damages under the Jones Act, 46 U.S.C.A. § 688, and under the Doctrine of Seaworthiness of the general maritime law. The jury returned a verdict for Murphy Pacific. The district court denied Garcia’s motion for new trial and judgment N.O.V. We affirm.
For about a week Garcia had been assisting Fuquay, another crew member, in splicing cable, an ordinary function *305 aboard the vessel while it was in port. The splicing was accomplished by cleaning the ends of the cable with diesel oil and a brush to remove the protective grease coating. Some of the oil and grease necessarily fell to and accumulated on the steel deck. To prevent the crew members engaged in the splicing operation from slipping on the deck, canvas, burlap bags, and sawdust were spread over the area.
At the time of the accident Fuquay was handling the Marlin spike and Garcia was pulling the strands of wire through the splice. Garcia’s feet suddenly slipped out from under him, and in turning to the right in order to catch himself with his hands and arms while falling, he experienced pain in his lower back.
Garcia specifies two errors on appeal: the jury was manifestly in error in its failure to find that the Cable was unseaworthy and its crew negligent; and Garcia was denied his day in court,, as the result of the inattentiveness or dozing of one of the mеmbers of the jury.
Garcia argues that the jury must not have understood the rather complex principles involved in a determination of liability undеr the general maritime law and under the Jones Act and that it was manifestly in error in incorrectly applying the legal principles involved. Wе disagree.
A careful review of the record convinces us that the issues tried were properly submitted to the jury and that its findings should stand. There was evidence to show that oil was on the deck; that safety measures were taken by spreading burlap sacks, canvas, and sawdust on thе decks; that the cleaning and splicing was a normal function when the vessel was in port; that diesel oil is customarily used in connection with thе splicing; and that there was nothing unusual in the way in which the operation was conducted. There was also evidence with respect to the experience of Garcia in connection with the splicing operation and the supervision, or lack of it, of Garcia.
In Lieberman v. Matson Navigation Company, 9 Cir. 1962,
While it is true that the requirement to furnish a seaman a seaworthy vessel is absolute, it is untrue that this duty is limitless. “The standard is not perfection, but reasonable fitness.” Mitchell v. Trawler Racer, Inc., 1960,362 U.S. 539 , 550,80 S.Ct. 926 , 933,4 L.Ed.2d 941 . The owner is not an insurer. Neterеr v. United States, D.C.Md.1960,183 F.Supp. 893 .
“In other words, a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled fo a deck that is nоt unreasonably slippery.” Colon v. Trinidad Corp., D.C.N.Y.1960,188 F. Supp. 97 at 100.
“The temporary presence of water upon the deck does not constitute unsеaworthiness — to hold otherwise would make the shipowner an insurer.” Garrison v. United States, N.D.Cal.1954,121 F.Supp. 617 .
Whether unseaworthiness or negligence are а proximate cause of the accident are questions of fact. Borgen v. Richfield Oil Corp., 9 Cir. 1958,257 F.2d 505 . The burden of proving either is on appellant. Selby v. United States, 2 Cir. 1959,264 F.2d 632 ; Lipscomb v. Groves, 3 Cir. 1951,187 F.2d 40 .
From the evidence presented, the jury could have found that the Cable’s owner had acted as a reasоnably prudent person would have under the circumstances, hence there was no negligence; and that there was no unseaworthiness because the Cable was reasonably suited for its intended purpose and the work area was reasonably safe. On the other hand, the jury could have determined that there was negligence in the way the work was performed, or that because of the oil the arеa was unsafe and thus the vessel was unseaworthy. Under these circumstances we are not at liberty to redetermine facts found by the jury.
*306
Under the rule of Lavender v. Kurn, 1946,
whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.
Finally, we are unpersuaded that Rogers v. United States, 5 Cir. 1972,
While we might agree with Garcia’s contentions had the question of fact bеen left to us, we can no more redetermine facts found by the jury than the district court can predetermine them. “For the Seventh Amendment sаys that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.’ ” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962,
By post trial motion for a new trial Garcia contended that he was denied his day in court beсause one of the jurors was allegedly inattentive or periodically dozing during the trial. The district court denied the motion and we think its ruling was prоper.
It appears that the juror was curled up in her chair from time to time and kept her eyes closed frequently during the trial. The trial judgе noticed this but also noted that the juror gave evidence that she was listening. There was no evidence offered that the juror was in fact asleep or inattentive. 1
Because the context in which alleged juror misconduct arises is different in every case, whether a nеw trial should be granted must be decided on an ad hoe basis. In this case we cannot say that the evidence supported a finding of juror misconduct. 2
The judgment of the district court is Affirmed.
Notes
. The trial judge found :
I am not satisfied that (she) was ever asleep at any time during the trial.
I am not satisfied in this case that the interest of justice would be sеrved by my granting a new trial on the hypothesis that this juror was inattentive.
. Xo objection was made by Garcia’s counsel during the trial and no affidavits were submitted by either Garcia or his counsel in support of the motion for new trial because they were unaware of the situation. Of cоurse, a party, with knowledge of a juror’s misconduct, must make a timely objection and is not permitted to take his chances on a favorable verdict and if unfavorable get a second bite of the apple.