FRANK, Circuit Judge.
This was a suit by plaintiff, a seaman, under the Jones Act, 46 U.S.C.A. § 688, for injuries sustained while serving on defendant’s ship. At the trial by judge and jury, there was evidence as follows: Plaintiff was directed by the boatswain to “slush” the stays, i. e., to apply a preservative compound to steel cables permanently installed between the ship’s side at deck level and a point on the masts about forty-five feet above the deck. To do this work, plaintiff used a “bosun’s chair,” i. <?., a board used as a seat, with short lengths of rope fastened to each corner. These were joined together, to form a bridle, at the upper end of which there was a loop or “eye.” To suspend the “bosun’s chair,” plaintiff placed over the stay a U-shaped shackle, the open ends of which could be closed by a threaded pin. Plaintiff testified that he inserted this pin through the eye at the upper end of the bridle, and thus attached the bridle and chair to the shackle. The shackle was free to slip up and down from the top of the stay to a point about five feet above the deck, where there was a turnbuckle on the stay which was too large to permit passage of the shackle.
Plaintiff testified that he passed a rope, or gantline, through a block attached to the mast near the top of the stay and secured one end of the gantline to the bridle of the bosun’s chair. By pulling on the loose end of the gantline, as he stood on the deck, plaintiff raised the bosun’s chair to the upper end of the stay. He then ascended the mast by a ladder, carrying a bucket of “slush,” and seated himself in the bosun’s chair, holding it in position by securing the pay-away end of the line to the bridle. The bucket of “slush” was suspended from the bosun’s chair by a short line. After slush-ing each section of the stay within reach, plaintiff would lower himself a short distance by loosening and paying out part of the pay-away end of the line. When plaintiff had thus lowered himself to a point a few feet above the deck, he fell to the deck.
Plaintiff testified that the only cause of his fall was that the rope which had supported the chair broke, allowing the chair and shackle to slide down to the point where it caught on the turnbuckle. He also testified that the rope was old and unsuitable. This defendant’s witnesses denied. Defendant produced and offered in.evidence what it claimed was the rope actually used; it was unbroken.
In the charge to the jury, the judge included the statement that “if the rope furnished Mr. Couto was unsafe for the purpose of its intended use in the rigging employed in slushing down the stays, or if there was insufficient assistance for and improper supervision of that operation, then you will find that the defendant did not provide a seaworthy skip, regardless of whether or not you find the defendant to have been negligent.”
The words we have italicized state a wholly incorrect rule. We think defendant’s attorney sufficiently called this error to the judge’s attention when the attorney, after the charge, said, “Also, may I ask your Honor to charge one thing, that in spite of the fact that an old rope might have been issued, if that rope didn’t break, there is no unseaworthiness.” The judge denied this request on the ground that it had already been covered by his charge. We cannot agree. As the verdict was tainted by this error, there must be a new trial.
Defendant contends that there was error in that the amount of the verdict exceeded the ad damnum. We think not. See Rule 54(c); Fanchon & Marco v. Paramount Pictures, 2 Cir., 202 F.2d 731; Clark, Code Pleading (2d ed. 1947) 265-273. Defendant also argues that the trial judge erred in receiving evidence, offered by plaintiff, outside the scope of the pre-trial order. Since there must be a new trial, we have not considered this alleged error; and we assume that, to avoid any question, plaintiff will now take steps to procure a modification of the pre-trial order.
Reversed and remanded.
. Emphasis added.
. See Rule 51, F.R.C.P. 28 U.S.C.A.
. After the jury had deliberated for several hours, they returned to the courtroom and asked a repetition of the charge. The judge complied. Defendant’s counsel then excepted to certain parts of the charge but did not, by exception or request, again object to the portion of the charge we have quoted in such a way as to call the judge’s attention to the error. We think that this did not cure that error. Cf. Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, 519.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.