The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3349EMCG

___________ TERRY D. BALLARD, * * Plaintiff-Appellant, * * v. * On Appeal from the * United States District Court RIVER FLEETS, INC., * for the Eastern District * of Missouri Defendant-Appellee. * [PUBLISHED]

___________ Submitted: June 12, 1998 Filed: July 13, 1998

___________ Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________The Honorable Thomas C. Mummert, III, United States Magistrate Judge for 2 the Eastern District of Missouri. -2- _____________

PANNER, District Judge Terry D. Ballard hurt his back while working as a deckhand on a tug boat. He brought a personal injury action under the Jones Act, 46 U.S.C. app. § 688, against his employer, River Fleets, Inc. At trial, the jury found for Ballard but determined that he was 35% at fault. On appeal, Balla rd contends that the District Court should not have 2 allowed the jury to determine contributory negligence. We affirm. I. Background River Fleets operated tug boats on the Mississippi River near Wyatt, Missouri. On the night of November 29-30, 1992, Ba llard was working as a deckhand on a River Fleets tug boat. The tug's crew in cluded another deckhand, Tom Healey, and the pilot, Mike Davis. While head ing back to the dock at about 5:00 a.m., Davis noticed two barge s drifting as kew from a fleet. Securing barges was a routine duty for deckhands, s o Ballard and Healey boarded one of the barges. Davis maneuvered the tug to shove the two barges end-to-end. When Davis pushed th e barges together, Healey stepped down onto the deck of the s econd barge and Ballard handed him a looped length of steel cable that wa s fastened to a "tim

berhead," or post, on the first barge's deck. Healey was supposed to secure the cable to a timberhead on the second barge so Ballard could pull slack out of-3-

the ca ble before tightening it with a ratchet. Unfortunately, when Ballard pulled th e cable, it came loose and there was no resistance. Ballard fell hard onto the deck and hurt his back. At trial, the parties disputed whether Ballard contributed to his injury by pulling the cable straight back with the weight of his body. River Fleets taught deckhands to stand sideways for balance and to use only their arms to pull the cable. On direc t examination at trial, Ballard demonstrated how he pulled the cable : "Just grab the wire like you're standing lik e this (indicating), this is your chain link, you just kind of squat down and jerk it, you know, with your body, like that (indicating)." 1 Tr. 147. ( There were chain links on the end of the cable so the cable could b e attached to a ratchet for tightening.) On cross-examination, Ballard stated, "I had the chain links beside me, l ike this (indicating), squatted, -- about half squatted down with the chain links like this (indicating)." Id. 181. On cro ss-examination, Ballard's own expert witness, Captain Vincent "Pete " Ciaramita ro, testified that he understood from Ballard's deposition testimony tha t Ballard "got behind the wire to pull it." 2 Tr. 54. Ciaramitaro agreed that Ballar d would "go flying backwards" if the cable came off the timberhead, which was "exactly what happened in this case." Id. 54, 55. The jury aw arded Ballard damages of $222,500, but found that Ballard had bee n 35% co ntributorily negligent. After subtracting a set-off for lost wage payments, th e court entered judgment for $123,721.72. This appeal followed. II. Standards Thi s court reviews de novo the denial of a motion for judgment as a matter o f law, appl ying the same standard as the district court. Gray v. Bicknell , 86 F.3d 1472, 1478 (8 th Cir. 1996). This court "must: '(1) resolve direct factual conflicts in favor ofDecisions on the Federal Employers' Liability Act (FELA) , 45 U.S.C. §§ 51-60, 3 apply to c laims brought under the Jones Act, 46 U.S.C. app. § 688. See Alholm v

. American Steamship Co. , Nos. 97-1840, 97-1831, 1998 WL 276309, at *7 (8th Cir

. June 1, 1998). -4- the non movant; (2) assume as true all facts supporting the nonmovant which th e evidence tended to prove; (3) give the nonmovant the benefit of all reasonabl e infer ences; and (4) affirm the denial of the motion if the evidence so viewed woul d allow reasonable jurors to differ as to the conclusions that could be drawn.'" Sherlock

v. Quality Control Equip. Co. , 79 F.3d 731, 735 (8th Cir. 1996) (quoting Grand Lab., Inc. v. Midcon Lab. , 32 F.3d 1277, 1280 (8th Cir. 1994)). "We will not set aside a jury's verdict lightl y, and we will not weigh, evaluate, or consider the credibility of the evidence." Kaplon v. Howmedica, Inc. , 83 F.3d 263, 266 (8th Cir. 1996). III. Discussion Rive r Fleets had the burden of proving the affirmative defense of contributory negligence

. Borough v. Duluth, Missabe & Iron Range Ry. Co. , 762 F.2d 66, 69 (8th Cir. 1985). "A defendant

is entitled to a contributory negligence instruction if there is 3 any evidence to support the theory. If the defendant fails, however, to produce evidence of the plaintiff's lack of due care, then it is reversible error to give the instruction. " Birchem v. Burlington N. R.R. Co. , 812 F.2d 1047, 1049 (8th Cir. 1987) (citation s omitted). Here, Ballard contends th at to show contributory negligence, River Fleets relied solely on impeaching his credibility. See Birchem , 812 F.2d at 1049 n.4 ("a defendant cannot rely solely on the credibi lity of the plaintiff's testimony to establish contributory neg ligence") (citing Borough , 762 F.2d at 69). We agree with River Fleets, however, that there was independent evidence of Ballard's negligence. The jury could have found-5-

from B allard's testimony and demonstration that he had incorrectly used the weight of his body to pull the cable straight back. See United States v. Skinner , 425 F.2d 552 , 555 (D .C. Cir. 1970) ("The visual evidence [a courtroom demonstration showing th e relative pos itions of a shooting victim and his assailant] . . . is not part of the printe d record but the appellate court is required to give full credit to all reasonable inferences ded ucible therefrom."). Cf. Alholm v. American Steamship Co. , Nos. 97-1840 , 97-1831, 1998 WL 276309, at *7 (8th Cir. June 1, 1998) ("American Steamship' s def ense was not solely based on [impeaching the plaintiff's] credibility, however. I t simply asked the jury to interpret ambiguous testimony in its favor, and this was no t improper."). The jury also could have based its finding on the test imony of River Fleets' expert witness and of Ballard's own expert witness. Affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.