June 11, 1993     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2109

                MARIE LOUISE SANTONI-LORENZI,

                    Plaintiff, Appellant,

                              v.

                   F.W. WOOLWORTH COMPANY,

                     Defendant, Appellee,

                              v.

                    OTIS ELEVATOR COMPANY,

                    Third Party Defendant.

                                         

                         ERRATA SHEET

The opinion  of this Court issued  on May 27,  1993 is amended  as
follows:

Page 11, line 6:  Change "days" to "hours."

May 27, 1993            [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 92-2109

                MARIE LOUISE SANTONI-LORENZI,
                    Plaintiff, Appellant,

                              v.

                   F.W. WOOLWORTH COMPANY,
                     Defendant, Appellee,

                              v.

                    OTIS ELEVATOR COMPANY,
                    Third Party Defendant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                     

                                        

                            Before

                     Breyer, Chief Judge,
                                        
              Torruella and Cyr, Circuit Judges.
                                               

                                        

Marie Louise Santoni-Lorenzi on brief pro se.
                            
Amancio Arias Guardiola on brief for appellee.
                       

                                        

                                        

          Per  Curiam.   This is a  pro se appeal from a jury
                     

verdict in  a personal injury case and from a district  court

order dismissing plaintiff-appellant's motion for a new trial

on the grounds of  jury misconduct.  After a  three-day trial

at  which  appellant was  represented  by  counsel, the  jury

determined that appellant was  comparatively negligent for 95

percent of the  $5,000 awarded to her in  damages.  The award

was therefore  reduced  to $250.00.   Appellant  moved for  a

mistrial on the  grounds of  jury misconduct.   After a  full

evidentiary hearing,  the district court  denied the  motion.

We affirm both the judgment and  the denial of the motion for

mistrial.

                          Background
                                    

          Appellant filed this diversity action in the United

States District Court for the District of Puerto Rico against

defendant F.W. Woolworth  Co.1  The complaint alleged that on

December 16, 1988, appellant  Mary Louise Santoni was injured

while riding  on an escalator  in one of  defendant's stores.

Appellant  alleged  that  the  escalator was  running  at  an

excessive  speed, causing her  to lose her  balance and fall.

Appellant further  claimed that the emergency  button to stop

the  escalator   had  been  covered  with   tape,  making  it

                    

1.   Otis Elevator Co. was  brought into the case as a  third
party  defendant,  but  the  court granted  Otis'  motion  to
dismiss  the action against it  on the basis  of the evidence
presented at trial.

                             -4-

inaccessible,  and that  Woolworth's employees  ignored calls

for help.   Appellant, who was in her early eighties when the

accident   occurred,  allegedly   suffered  great   pain  and

continues  to suffer  from hearing  loss and  irregular heart

rate,  dizziness,   fear  and  depression  as   a  result  of

appellee's   negligence.      Appellant's  complaint   sought

$500,000.00 in damages.

          A three-day  jury trial was held  from February 24,

1992 through February 26,  1992.  After the jury  verdict was

entered, appellant filed  a motion for  mistrial on March  2,

1992.   The motion  alleged that relatives  of appellant  had

reported seeing a juror talking with defendant's witnesses in

the hallway of the  courthouse before the jury had  reached a

verdict.   Attached to  the motion  were sworn  statements by

three of appellant's  relatives indicating  that on  February

26, 1992,  during  a  court recess,  they  observed  a  juror

talking with  witnesses and counsel for the defendant.

          On May 1, 1992,  the district court held a  hearing

on the motion for  mistrial.  Appellant, who  was represented

by  counsel at the  hearing, called three  witnesses, a court

security  officer and  two of  appellant's relatives  who had

reported witnessing the alleged misconduct.   Appellee called

four witnesses,  including the  juror accused of  the alleged

misconduct, a  court security  officer and the  two witnesses

with whom  the juror was alleged  to have conversed.   All of

                             -5-

appellee's  witnesses  denied   that  there   had  been   any

communication  between  the  juror  and  the   witnesses  and

attorney for  the appellee.   The  attorney for  the appellee

also testified that he had not spoken to the juror.

          In an  opinion dated  August 4, 1992,  the district

court found that the  jury "remained impartial throughout the

trial  and  during the  crucial  deliberations."   The  court

credited  appellee's witnesses  and concluded  that appellant

had failed  to produce credible evidence  of jury misconduct.

The  court  noted  that appellee  had  failed  to report  the

alleged  misconduct to the  court or to  their attorney until

after the jury verdict was  entered, although more than eight

hours  elapsed   between  the  alleged  misconduct   and  the

announcement of  the jury's  verdict.   The court  also found

that  "the verdict  rendered is  clearly consistent  with the

weight  of  evidence  adduced  at  trial."    Therefore,  the

district court denied appellant's motion for a new trial.  

                          Discussion
                                    

          On  appeal,  Mrs.  Santoni  argues  that  the  jury

verdict  finding  her comparably  negligent  for  95% of  the

damages caused  was contrary to  the weight of  the evidence.

She also argues that the district court abused its discretion

in  denying  her  motion  for  a  mistrial  based  upon  jury

misconduct.   Finally, she finds fault  with the court's jury

instructions.  

                             -6-

     Sufficiency of Evidence.
                             

          Appellant  failed   to   preserve  the   issue   of

sufficiency of  the evidence for  appeal.  She  neither moved

for judgment as a matter of law at the close of evidence, nor

renewed  her motion after entry of judgment. See Fed. R. Civ.
                                                

P.  50.   Nonetheless,  even if  appellant had  preserved the

issue  for appeal, she would  not prevail under the following

applicable standard of review:

     To  determine  whether   sufficient  evidence   was
     offered  at trial  to  support  the jury's  factual
     findings, the  court must view the  evidence in the
     light most favorable to the nonmoving party, giving
     that   party  the  benefit  of  all  the  favorable
     inferences that may be drawn.

Aggarwal  v. Ponce School of  Medicine, 837 F.2d  17, 19 (1st
                                      

Cir. 1988).   On appeal,  the jury's verdict  must be  upheld

unless "the court finds that the evidence points 'so strongly

and overwhelmingly in  favor of the movant that  a reasonable

jury could  not have  arrived at [the]  conclusion reached.'"

Id. (quoting Chedd-Angier Production Co. v. Omni Publications
                                                             

Int'l, Ltd., 756 F.2d 930, 934 (1st Cir. 1985)).
           

          Appellant argues that "there can be no contributory

negligence  on  the  part   of  Plaintiff  in  [the]  special

circumstances [of  this  case]."    Those  circumstances  are

"uncontroverted evidence describing the electric stairways as

an unregulated and unsyncronized electric stairway"on   which

the elderly plaintiff was  "violently thrown back . .  ., and

then dragged up to the second floor . . . without any help or

                             -7-

assistance  of  the   store's  employees."     According   to

appellant, "the uncontroverted evidence  as to the total lack

of  adequate  control  by  the Store  of  the  high  velocity

movement  of the  electric stairway  was responsible  for the

unfortunate accident  amounting to 100% of  the negligence of

the Store."

          Contrary to appellant's  allegations, however,  the

evidence  was  far   from  uncontroverted.    The   following

testimony was presented, from which the jury could have found

that  appellant was negligent in her use of the escalator and

that  appellee's negligence  was only  marginally responsible

for the  accident.   Mr. Mendez,  a supervisor  at appellee's

store  at the  time of  the accident,  testified that  he saw

appellant  struggling with her  granddaughter before boarding

the  escalator and advised them that  appellant should not be

made  to ride the escalator  in her condition  and that there

was an  alternative means of access to the second floor.   He

further testified  that when he  later heard a  commotion and

saw  that   appellant  had   fallen  on  the   escalator,  he

immediately  shut it off,  using the emergency  button on the

first  floor.  Mr. Mendez stated that after the accident, the

escalator  was turned back on  and that it  continued to work

"perfectly".  Finally,  he testified that he  did not observe

that  the speed of the  escalator that day  differed from its

speed on any other day before or since the accident.

                             -8-

          Appellee's other witness,  Mr. Grimani, manager  of

the  Woolworth store at  the time of  the accident, testified

that in  his ten years of  working at the store  he never saw

the  escalator accelerate  beyond its normal  operating speed

nor received a complaint regarding its speed.  He stated that

in  his 33 years of  employment with Woolworth,  he had never

heard of an escalator accelerating.

          Third party defendant, Otis Elevator Co., put on an

expert  witness in  electronics,  Mr. Abraham.   Mr.  Abraham

testified that the type  of motor which drives  the escalator

makes acceleration  impossible.   He explained that  the only

way  that the  speed  of an  escalator can  be changed  is to

replace the gear box  and motor.  Mr. Abraham  testified that

the  escalator in  question ran  at 90  feet per  minute, the

industry standard, on the day of the accident. 

          Appellant introduced contrary  evidence in  support

of her theory that the accident was caused by acceleration of

the  escalator  and the  appellee's  employees' inability  to

control it.   Mrs. Santoni  testified that  when she  stepped

onto the escalator and  placed her hand on the  handrail, she

felt a strong pull  which caused her to lose  her balance and

fall backward.   Mrs. Monegro, another customer at appellee's

store  on the day of the accident, testified that she noticed

that the escalator going  from the first to the  second level

was "going too  fast".   She further testified  that when she

                             -9-

learned that a lady  had fallen on the escalator,  she looked

for the emergency button to stop the escalator but was unable

to find it.  

          Mr. Freyre, appellant's grandson, testified that he

was at  the store  with his  grandmother on  the  day of  the

accident and noticed that the escalator between the first and

second  level was running "very  fast".  He further testified

that  after his grandmother's  accident he tried  to stop the

escalator  but could  not locate  the emergency button.   Mr.

Freyre stated that he later saw an employee remove black tape

covering the  emergency button, before pushing  the button to

stop  the escalator.    Finally, he  testified  that when  he

returned to  the store,  two  days later,  the escalator  was

running  at  a normal  (slower) speed  and  that tape  was no

longer covering the emergency buttons.

          Mrs.  Freyre, appellant's  granddaughter, testified

that she was with appellant at the time of the accident.  She

stated that  her grandmother was told by a Woolworth employee

that the escalator was the only means of access to the second

floor. Mrs. Freyre testified that the escalator "was going at

a  high  rate  of  speed" when  appellant  stepped  onto  it.

Finally, Mrs. Rivera,  another customer at appellant's  store

on the day of the accident, testified that she  rode the same

escalator as appellant,  shortly before appellant's accident,

and  noticed that it was fast.   She stated that when she saw

                             -10-

appellant fall she tried to find the emergency button to stop

the escalator, but was  unable to locate it.   Appellant also

introduced into  evidence at the trial  five accident reports

of other falls on the escalators in appellant's store  during

1988.

          Based  upon  the  evidence   presented  (summarized

above), the  jury concluded  that appellee was  negligent and

that its negligence proximately caused some of  the injury or

damage  suffered by  appellant.   It further  found, however,

that  appellant  was  comparatively  negligent  and  that her

negligence was  responsible  for 95%  of  the damages.    The

evidence,   although   conflicting,   does   not   point   so

overwhelmingly in  favor of appellant that  a reasonable jury

could  not have  arrived at  this conclusion.   "[I]t  is for

jurors,  not judges, to weigh the  evidence and determine the

credibility of witnesses." Insurance  Co. of North America v.
                                                          

Musa, 785 F.2d 370, 372  (1st Cir. 1986).  It was  the jury's
    

right to credit appellee's witnesses and to conclude that the

escalator  was  not running  at an  excessive speed  and that

appellant's  own actions,  for  example  her unsteadiness  or

misplacement  of  her cane,  caused her  to  fall.   The jury

verdict is supported by sufficient evidence.

Jury Misconduct
               

          A district  court's decision denying  a motion  for

new   trial  will  not  be   reversed  except  for  abuse  of

                             -11-

discretion. Real v.  Hogan, 828 F.2d  58,61 (1st Cir.  1987).
                          

The district court, following appellant's allegation of juror

misconduct, properly  carried out its duty  to investigate to

ascertain  whether the  misconduct actually occurred,  and if

so, whether it was prejudicial.  See United States v. Boylan,
                                                            

898  F.2d 230,  258 (1st  Cir.), cert.  denied, 498  U.S. 849
                                              

(1990).    The district court held a full evidentiary hearing

at which  witnesses for appellant and  appellee testified and

were cross-examined under oath.

          Upon review of the record, including the transcript

of  the evidentiary  hearing, we  conclude that  the district

court did  not abuse its  discretion in determining  that the

alleged  misconduct  did  not  occur.    At  the  evidentiary

hearing,  appellant's principal  witnesses were  her son  and

grandson who  testified  that  they  saw one  of  the  jurors

converse with witnesses and counsel for the defendants in the

hallway of the courthouse on the morning  of the final day of

the  trial,  eight hours  before  the  verdict was  rendered.

Appellee called the juror,  witnesses and attorney alleged to

have  engaged  in the  misconduct to  testify.   All  of them

denied that the conversation had ever occurred.    

          The juror testified that  he had been approached by

a  woman,   unconnected  with   the  case,  outside   of  the

courthouse, who told him that one of appellee's witnesses was

from the  same home  town as  the juror.   The  juror stated,

                             -12-

however, that he was not influenced  by this information. Our

review of the record supports the district court's conclusion

that  sufficient  evidence  was  produced to  show  that  the

communication did  not have a prejudicial effect.   There was

no  abuse of discretion.   See United States  v. O'Brien, 972
                                                        

F.2d 12, 14 (1st Cir. 1992).

          Moreover, by  failing to inform the  district court

about the alleged juror misconduct until five hours after the

verdict was rendered, although she had allegedly become aware

of  the  impropriety  eight  hours  before  the  verdict  was

entered, appellant  waived the  right to complain  about such

conduct.  See United States v. Morris, 977 F.2d 677 (1st Cir.
                                     

1992),  cert. denied,      U.S.    , 113 S.Ct.  1588 (1993). 
                    

Even absent  waiver, however, we  conclude that there  was no

miscarriage  of  justice and  therefore  affirm  the district

court's denial of appellant's motion for a new trial.

Jury Instructions
                 

          Appellant's  final argument  is  that the  district

court erred in instructing the jury.  First, appellant argues

that  the court in its opinion mischaracterized the case as a

"slip and fall" case  and that its misconception of  the case

was reflected  in the  jury instructions.   Second, appellant

contends  that the  district court  erred in  instructing the

jury  regarding dismissal  of  the third-party  defendant  as

follows:

                             -13-

     Otis Elevator Company  is no longer  with us.   The
     case  of Otis was disposed of in such a manner that
     you  don't need to  concern yourself  with anything
     pertaining to it.   Forget  about it.   Otis is  no
     longer  a part of this case and I repeat, you don't
     need to be concerned with it. 

Appellant argues  that this instruction sent a message to the

jury  that   the  malfunction   of  the  escalator   was  not

responsible for the accident.

          The  record  indicates  that  appellant  failed  to

object to the  jury instructions before  the jury retired  to

consider  the verdict,  as required  by Fed.  R. Civ.  P. 51.

Rule 51 provides, in relevant part, as follows:

     No  party may  assign as  error the  giving  of the
     failure to  give an  instruction unless that  party
     objects thereto before the jury retires to consider
     its verdict, stating distinctly the matter objected
     to and the grounds of the objection.

"In the absence of  compliance with the dictates of  Rule 51,

we  review for plain error." Elgabri v. Lekas, 964 F.2d 1255,
                                             

1259 (1st Cir.  1992).   Our review of  the district  court's

instructions to the jury does not reveal any "miscarriage  of

justice." Id.  at 1259.  Therefore, we find no plain error in
             

the jury instructions.

          Although the  district court referred  to this case

as a "slip and fall" case in its opinion, it did not do so in

its jury  instructions.  Moreover, such a reference would not

have  constituted plain  error.    The detailed  instructions

given  corrected any  misconception that  the term  "slip and

fall"  might  have  conveyed.   The  court  correctly  stated

                             -14-

current Puerto Rico  law with  respect to  negligence in  the

context of this case.  See Mas v. United States, No. 92-1392,
                                               

slip op. at 7-8 (1st Cir. Jan. 28, 1993).  Moreover, the jury

found  that appellee was negligent.  There was no plain error

here.

          Appellant  fares   no  better  with   her  argument

regarding  the court's  instructions about  the dismissal  of

Otis  Elevator Co.   Even  assuming that  the portion  of the

instructions relating  to  the third  party defendant,  taken

alone, might  have improperly directed  the jury's  attention

away  from the role of the escalator in causing the accident,

when we consider  the instructions  as a whole,  it is  clear

that no miscarriage of justice resulted. Cf. United States v.
                                                          

O'Brien, 972 at 16 ("so long as the charge, taken as a whole,
       

correctly  conveys the  concept  of reasonable  doubt to  the

jury,  no  reversible error  exists").    The district  court

carefully  instructed the jury  that appellee  had a  duty to

"maintain the  business place in  such a safe  condition that

one  who is induced to  enter the premises,  would not suffer

damage."    As  thus   described,  appellant's  duty  clearly

extended to maintenance of the escalator.  The manufacturer's

dismissal from the case  did not preclude a finding  that the

escalator was not maintained in "a safe condition."  

          For all of the  foregoing reasons, the judgment and

the denial  of appellant's motion for  mistrial are affirmed.
                                                            

                             -15-

Appellee's request for damages and costs  pursuant to Fed. R.

Civ. P. 38 is denied.                              
                    

                             -16-
