                       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 PANNER1, District Judge
                               ___________




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




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 Court2 should not have
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

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

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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

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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).3 "A defendant is entitled to a contributory negligence instruction if there is
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


       3
       Decisions on the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60,
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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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.




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