232 F. Supp. 28 | S.D.N.Y. | 1964
This is a diversity action under the-New York Wrongful Death Statute
Defendant’s motion is denied.
The evidence presented to the-jury was sufficient to raise the issue of defendant’s negligence and the jury-found that defendant was negligent. It is immaterial whether this negligence was prior to Olsen’s falling overboard or in the rescue operations so long as the jury found, as it did, that the negligence was a proximate cause of Olsen’s death.
Whether Olsen underwent any pain and suffering prior to his drowning was a question of fact for the jury’s consideration on all the circumstances presented in the evidence. Meehan v. Central Railroad Company of New Jersey, 181 F.Supp. 594, 625-626 (S.D.N.Y.1960).
It was immaterial whether Olsen’s presence on Tug 15 was contrary to Coast Guard regulations or defendant’s rules. He was invited on the tug by its Captain and, once there, defendant owed him a duty of reasonable care. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).
Finally, defendant contends that the verdict of $27,820 was excessive, emphasizing Olsen’s prior background and habits. In the Court’s opinion, the verdict was “fair and just compensation for the pecuniary injuries, resulting from [Olsen’s] death, to the person or persons, for whose benefit the action is brought”, N.Y.D.E.L. § 132, and is not excessive under all of the circumstances developed on the trial.
Defendant’s motion is denied.
It is so ordered.
. New York Decedent Estate Law, McKinney’s Consol. Laws, c. 13, §§ 130-134. Claims for negligence under the Jones Act and for unseaworthiness were dismissed during the trial
. N.Y.D.E.L. § 131. Groonstad v. Robbins Repair Co., 236 N.Y. 52, 139 N.E. 777 (1923) ; Spinelli v. Seatrade Corp., 277 App.Div. 992, 99 N.Y.S.2d 945 (2d Dept. 1950). New York law determines the effect of Olsen’s contributory negligence. United New York Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); cf. Kossick v. United Fruit Co., 365 U.S. 731, 739-740, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).
. Under New York law the maritime rule stated in Kermarec would define defendant’s duty of care toward Olsen. Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E. 2d 718 (1947); Kuhn v. P. J. Carlin Const. Co., 274 N.Y. 118, 8 N.E.2d 300 (1937).