Zachary Killebrew sued Security Barge Line, Inc. in the Circuit Court of Holmes County for back injuries allegedly sustained when he jumped from the deck of an empty barge to the coaming (hatch cover) of a loaded barge.
This case was transferred from the Circuit Court of Holmes County to the Circuit Court of Washington County and subsequently tried in that Court. The jury returned a verdict for $60,000 and on motion for a new trial the court granted the motion on damages alone unless the plaintiff entered a remittitur of $25,000. The plaintiff entered the remittitur, the judgment was reduced to $35,000 and the motion for a new trial was overruled.
Appellant appeals, and appellee cross-appeals assigning as error the reduction of the $60,000 judgment to $35,000.
On January 28, 1971, Killebrew, a young man twenty years of age, of Tchula, Mississippi, was employed by Security Barge Line, Inc. as a deckhand and boarded the towboat ISSAQUENA at Hickman, Kentucky, while it was pushing a tow of loaded and unloaded barges up the Mississippi River. Each barge is about 200 feet long and 35 feet wide. He had previously worked for Security as a deckhand for about two and a half months back in 1969. Appellee explained his job in this way:
"[Y]ou're all the time tightening ratchets, tightening them and carrying them, and tying the barges together, walking back and forth, getting stuff to carry out there, and you've always got to have something in your hand like a cheater pipe or a pair of tooth picks, what they call them, to hold the ratchet in place while you tighten it."
On February 17, 1971, the ISSAQUENA and its tow were northbound on the Mississippi River. The tow consisted of about twelve barges, four deep and three wide, with the eight outside barges being empty and the four middle barges being full of cargo, all being lashed together and pushed by the towboat ISSAQUENA. An empty barge draws about two feet of water and the deck of an empty is about six or seven feet above the deck of a loaded barge alongside. Killebrew explained what he was doing:
"The captain had told me to string out light cord to where we would have starboard and port light. I took a cord all the way out to just about almost to the middle of the loaded barge. I run out, so I went back to get some more light cord."
As he was leaving the ISSAQUENA with another light cord, the captain told him to carry a leading line out to the end of an empty barge. Killebrew explained:
"[S]o I had to crawl up on the tow knee to get onto the empty, so I walked down the empty and carried the leading line out on the end of the empty."
The tow knee is a wide steel device across the front of a towboat used in pushing the barges. The towboat being wider than a barge, all three facing barges are lashed to the tow knee and the towboat ISSAQUENA, by means of the tow knee, pushed the entire tow. The tow knee on the towboat side
has steps across the entire front of the towboat down to the deck of the towboat. After carrying the leading line to the end of the empty barge, Killebrew walked about halfway back on the empty barge and when about 100 feet from the tow knee Killebrew decided to jump from the empty barge to the coaming or hatch cover of the loaded barge. The coaming would be about two feet lower and about 1 1/2 feet from the deck of the empty barge. Appellee testified that when he landed on the hatch cover of the loaded barge it jarred him and a sharp pain went through his back. He complained to the captain, but did not ask to be put ashore and continued to work until the towboat and its tow reached Greenville, about 10 days later.
About a week or two after he had returned home, he complained to the port captain and, at his suggestion, went to see Dr. Browning in Greenwood. After being in traction for about three weeks, Killebrew returned to his home and drove a tractor for his uncle for a short time. He went to work on May 15th for Peaster Tractor Company, where he has worked ever since.
Killebrew was examined on July 2, 1971, by Dr. Elmer Nix, an orthopedic surgeon of Jackson. His diagnosis was "probable healing herniated" disc in his lower back. Doctor Nix stated that laymen refer to this condition as a ruptured or slipped disc.
All of appellee's hospital and medical expenses were paid by appellant, and appellee was paid his full salary up to May 15, 1971, when he went to work for Peaster Tractor Company. He ...