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

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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

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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. 

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_____________

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, Ballard 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, Ballard was working as a deckhand on a River

Fleets tug boat. The tug's crew included another deckhand, Tom Healey, and the pilot,

Mike Davis.

 While heading back to the dock at about 5:00 a.m., Davis noticed two barges

drifting askew from a fleet. Securing barges was a routine duty for deckhands, so

Ballard and Healey boarded one of the barges. Davis maneuvered the tug to shove the

two barges end-to-end. 

When Davis pushed the barges together, Healey stepped down onto the deck of

the second barge and Ballard handed him a looped length of steel cable that was

fastened to a "timberhead," 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
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the cable before tightening it with a ratchet. Unfortunately, when Ballard pulled the

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 direct examination at trial, Ballard demonstrated how he pulled the cable:

"Just grab the wire like you're standing like 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 be

attached to a ratchet for tightening.) On cross-examination, Ballard stated, "I had the

chain links beside me, like this (indicating), squatted, -- about half squatted down with

the chain links like this (indicating)." Id. 181. 

On cross-examination, Ballard's own expert witness, Captain Vincent "Pete"

Ciaramitaro, testified that he understood from Ballard's deposition testimony that

Ballard "got behind the wire to pull it." 2 Tr. 54. Ciaramitaro agreed that Ballard

would "go flying backwards" if the cable came off the timberhead, which was "exactly

what happened in this case." Id. 54, 55. 

 The jury awarded Ballard damages of $222,500, but found that Ballard had been

35% contributorily negligent. After subtracting a set-off for lost wage payments, the

court entered judgment for $123,721.72. This appeal followed. 

II. Standards

This court reviews de novo the denial of a motion for judgment as a matter of

law, applying the same standard as the district court. Gray v. Bicknell, 86 F.3d 1472,

1478 (8th Cir. 1996). This court "must: '(1) resolve direct factual conflicts in favor of
Decisions on the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, 3

apply to claims 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). 

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the nonmovant; (2) assume as true all facts supporting the nonmovant which the

evidence tended to prove; (3) give the nonmovant the benefit of all reasonable

inferences; and (4) affirm the denial of the motion if the evidence so viewed would

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 lightly, 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 

River 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) (citations

omitted). 

Here, Ballard contends that 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 credibility of the plaintiff's testimony to establish contributory

negligence") (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
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from Ballard'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 the

relative positions of a shooting victim and his assailant] . . . is not part of the printed

record but the appellate court is required to give full credit to all reasonable inferences

deducible 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

defense was not solely based on [impeaching the plaintiff's] credibility, however. It

simply asked the jury to interpret ambiguous testimony in its favor, and this was not

improper."). The jury also could have based its finding on the testimony 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.