April 28, 1994    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1106

                        ERIC CLAUSEN,

                     Plaintiff, Appellee,

                              v.

                         SEA-3, INC.,

                     Defendant, Appellee.

                                         

                         ERRATA SHEET

   The  opinion  of this  Court issued  on  April 19,  1994, is
amended as follows:

   On page  14, line 3 of first paragraph of section II, add an
"ly" to "perpendicular".

   On page 20, last line, replace "the" with "a."

   On page 46, line 2 of part "2.", replace "motion to alter or
amend the judgment to "Motion to Alter or Amend a Judgment." 

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1106

                        ERIC CLAUSEN,

                     Plaintiff, Appellee,

                              v.

                         SEA-3, INC.,

                     Defendant, Appellee.

                                         

            STORAGE TANK DEVELOPMENT CORPORATION,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Howard C. Bratton,* U.S. Senior District Judge]
                                                        

                                         

                            Before

                    Boudin Circuit Judge, 
                                        

         Coffin and Campbell, Senior Circuit Judges.
                                                   
                                         

Robert  L. Elliott  with whom  Charla  Bizios  Labbe and  Kfoury &amp;
                                                                  
Elliott, P.C. were on brief for Sea-3, Inc.
         
Thomas  E. Clinton  with whom  Robert J. Murphy  was on  brief for
                                               
Storage Tank Development Corporation.
Michael B. Latti with whom David  F. Anderson and Latti Associates
                                                                  
were on briefs for plaintiff.

                                         
                        April 19, 1994
                                         

                

*Of the U.S. District Court for the District of New Mexico, sitting by
designation.

          CAMPBELL,  Senior  Circuit Judge.   On  February 6,
                                          

1989, Eric Clausen ("Clausen"),  plaintiff-appellee, slipped,

fell, and injured his back while  working as a pile driver at

a  job site  at a  fuel terminal  facility on  the Piscataqua

River,  Portsmouth  Harbor,  Newington,  New  Hampshire.    A

Massachusetts  resident, Clausen  sued for  negligence, under

the  diversity jurisdiction,  in the  United States  District

Court for the District of New Hampshire.  Defendants were the

owner  of  the  facility,  Storage  Tank   Development  Corp.

("Storage  Tank"),  a  New  Hampshire  corporation,  and  the

occupier  of the  facility,  Sea-3, Inc.  ("Sea-3"), a  Texas

corporation.  Defendants filed third-party complaints against

Clausen's employer, Goudreau Construction Corp. ("Goudreau").

          Clausen's claims went to trial beginning on October

5,  1992.   Storage  Tank's  and  Sea-3's third-party  claims

against  Goudreau were omitted from  that trial.1  On October

9,  1992, the jury  returned a  special verdict  in Clausen's

favor, pursuant to Fed. R. Civ. P. 49(a), finding him to have

been  damaged in the amount  of $1,426,000.2   On October 13,

1992, the district court  entered judgment in accordance with

the  special verdict.   On  December 31,  1992, the  district

                    

1.  The  district  court  ordered  a separate  trial  of  the
defendants' third-party  claims against Goudreau  pursuant to
Fed. R. Civ. P. 42(b).

2.  Responding  to special  questions,  the jury  apportioned
liability  against Storage Tank at 37.5%, Sea-3 at 37.5%, and
Goudreau at 25%.

                             -3-

court clarified its October 13, 1992,  judgment to hold Sea-3

and  Storage Tank jointly and severally liable to Clausen for

$1,426,000,  with prejudgment  interest  at the  rate of  ten

percent (10%)  from the date of the  complaint to the date of

the  verdict, plus  costs.   On January  22, 1993,  Sea-3 and

Storage  Tank  filed  separate  notices of  appeal  from  the

district court's  December 31,  1992, amended judgment.3   We

affirm.

                              I.

                    APPELLATE JURISDICTION

          Clausen  argues  that  we  do  not  have  appellate

jurisdiction over  Storage Tank's appeal because the district

court's  December  31,  1992,  amended judgment  was  not  an

appealable "final decision" as that term is used in 28 U.S.C.

  1291 (1988).4  We trace the procedural history.

          When  Storage Tank  filed its  notice of  appeal on

January  22, 1993,  from  the district  court's December  31,

                    

3.  On March  1, 1994, Sea-3 and Clausen reached a settlement
agreement  in  which Sea-3  agreed  to  withdraw its  appeal.
Accordingly, on March 7, 1994, we entered an order dismissing
Sea-3's appeal pursuant  to Fed.  R. App. P.  42(b).   Hence,
Storage Tank remains the sole appellant. 

4.  28 U.S.C.   1291 (1988) states in pertinent part:

          The courts of  appeals (other than  the United
     States Court of  Appeals for  the Federal  Circuit)
     shall have jurisdiction of  appeals from all  final
                                                        
     decisions of district courts of the United States .
                                                      
     . . .

(emphasis added).

                             -4-

1992,  amended  judgment,  its  own  unresolved,  third-party

claims were  still pending against Goudreau.   This situation

was problematic because a judgment

     that  completely  disposes  of  . . . any  separate
     claim  in  the  suit[,]  without disposing  of  the
     third-party  claim,  is  not  appealable  unless  a
     judgment is entered by the district court [pursuant
     to  Fed.   R.  Civ.  P.  54(b)5]   on  the  express
     determination  that there  is  no just  reason  for
     delay, and  an express  direction for the  entry of
     judgment.

6 James W. Moore et al., Moore's Federal Practice   54.36 (2d
                                                 

ed.  1993).   As the district  court had  not yet  entered an

appealable judgment within Fed. R. Civ. P. 54(b),  this court

advised Storage Tank, by order entered February 9, 1993, that

"[u]pon  review of the record  in this case,  it appears that

this court may not  have jurisdiction to consider the  appeal

because  a third  party complaint . . . may  be outstanding."

We  directed  Storage  Tank  "either to  move  for  voluntary

dismissal under  Fed. R. App. P.  42(b) or to show  cause why

[its] appeal should not be dismissed."  

                    

5.  Fed. R. Civ. P. 54(b) states in pertinent part:

          When  more  than  one  claim  for  relief   is
     presented  in  an  action,   whether  as  a  claim,
     counterclaim, cross-claim, or third-party claim, or
     when multiple parties  are involved, the court  may
     direct the entry of  a final judgment as to  one or
     more but fewer  than all of  the claims or  parties
     only upon an express determination that there is no
     just reason for delay and upon an express direction
     for the entry of judgment.

                             -5-

          Following our February  9, 1993, show cause  order,

Clausen on February  19 moved the district court  to "certify

[pursuant to Fed. R. Civ. P. 54(b)] that the judgment entered

on October 13 and amended on December 31, 1992[,] is a `final

judgment'  and `that  there is  no just  reason for  delay.'"

Storage Tank  then moved this  court for  additional time  to

respond to our February 9, 1993, show cause order.  On  March

4, 1993,  we granted  appellant's motion, extending  the time

within which  Storage Tank could  respond to our  February 9,

1993,  order until  March 23,  1993.  In  our March  4, 1993,

order  we instructed  Storage Tank  that, "[i]f  the district

court  certifies its  [judgment]  as final  pursuant to  Rule

54(b),  then,  in  order  to  avoid  any  . . . doubts  [over

jurisdiction], appellant[]  should file  [a] new  notice[] of

appeal." 

          On March 31, 1993,  over objection by the appellant

and after oral argument, the district court  entered an order

in which it  found, pursuant to Fed. R.  Civ. P. 54(b), "that

the judgment entered on  December 31, 1992, in favor  of Eric

Clausen and  against Storage  Tank . . . is a  final judgment

and  that there  is  no just  reason  for delaying  appellate

review."    Notwithstanding our  earlier  direction  that, to

avoid jurisdictional complications, Storage Tank submit a new

notice of appeal following the district court's Fed.  R. Civ.

                             -6-

P.  54(b)  certification,  Storage  Tank did  not  take  such

action. 

          Clausen now contends that as Storage Tank's  notice

of appeal    filed on January 22, 1993, more than  two months

prior to the  district court's entry of  judgment pursuant to

Fed. R. Civ. P. 54(b)    was  premature, it should be treated

as  a nullity.6  Clausen  is undoubtedly correct that Storage

Tank's  notice of  appeal  filed after  the district  court's

                    

6.  Clausen cites Willhauck v. Halpin, 919 F.2d 788 (1st Cir.
                                     
1990),  for the proposition that "a Notice of Appeal which is
premature ``simply self-destructs'' and  should be treated as
a nullity."  Id. at 792 (quoting Griggs v. Provident Consumer
                                                             
Discount Co., 459 U.S. 56, 61, 103 S. Ct. 400, 403, 74 L. Ed.
            
2d 225, 229 (1982)  (quoting 9 James W. Moore et al., Moore's
                                                             
Federal  Practice     204.12[1]  (1982))).    This  "nullity"
                 
principle,  however,  does  not  apply  to  this  case.    In
Willhauck, unlike here, we dismissed the  plaintiffs' initial
         
appeal on the  merits of  the case for  want of  jurisdiction
because "the plaintiffs filed their Notice of Appeal from the
district  court's   denial  of  their  Motion   for  Judgment
Notwithstanding the Verdict, or in the Alternative, for a New
Trial, one day prior  to the lower court's entry  of judgment
on the Motion."  Id. at 790 n.2.  The fact that the  district
                    
court had not yet entered  judgment on motions filed pursuant
to Fed. R. Civ.  P. 50(b) and/or 59 when the Willhaucks filed
their notice of appeal was dispositive because, under Fed. R.
App. P.  4(a)(4) (pre  1993 amendment),  a  notice of  appeal
                                                             
shall have no effect if it is filed before the disposition of
                    
a motion

     (i) for judgment under  Rule 50(b); (ii) under Rule
     52(b) to amend or make additional findings of fact,
     whether or not an  alteration of the judgment would
     be required  if the motion is  granted; (iii) under
     Rule  59 to  alter or amend  the judgment;  or (iv)
     under Rule 59 for a new trial.

Significantly,  Fed. R.  App. P.  4(a)(4) does  not expressly
nullify  a notice of appeal filed before the disposition of a
Fed. R. Civ. P. 54(b) motion.

                             -7-

entry of its amended judgment, but before its Fed. R. Civ. P.

54(b) certification, was premature.  See, e.g., Tidler v. Eli
                                                             

Lilly &amp; Co.,  824 F.2d 84, 85 (D.C. Cir.  1987).  The amended
           

judgment   was  unappealable   until   the   district   court

"direct[ed] the  entry of  a final  judgment .  .  . upon  an

express determination that there is no just reason  for delay

and upon  an express  direction for  the entry of  judgment."

Fed. R.  Civ. P. 54(b).  This was eventually done, and we are

at a loss as to why Storage Tank's  attorney failed to follow

our  instruction to file a new notice of appeal following the

district  court's Fed. R.  Civ. P. 54(b)  certification.7  We

conclude, nonetheless, that the prematurity of Storage Tank's

notice of appeal does not deprive us of jurisdiction over the

current appeal.

          The  majority  of   circuits  that  have  addressed

jurisdictional quagmires similar to this one have held that a

belated  Fed.  R.  Civ.   P.  54(b)  certification  ripens  a

premature   notice  of   appeal  as   of  the  date   of  the

certification.  See, e.g., United States v. Hardage, 982 F.2d
                                                   

1491,  1494-95 (10th  Cir.  1993); Harrison  v. Edison  Bros.
                                                             

Apparel Stores, Inc., 924  F.2d 530, 532 (4th Cir.  1991); In
                                                             

re Chateaugay Corp., 922 F.2d 86, 91 (2d Cir. 1990); Martinez
                                                             

                    

7.  Had Storage Tank properly  followed our instructions,  it
would  have filed a  new notice of appeal  "with the clerk of
the district  court within 30  days of" the  district court's
entry of  judgment pursuant to  Fed. R. Civ.  P. 54(b).   See
                                                             
Fed. R. App. P. 4(a)(1).

                             -8-

v.  Arrow Truck Sales, Inc.,  865 F.2d 160,  161-62 (8th Cir.
                           

1988);  Crowley Maritime  Corp. v.  Panama Canal  Comm'n, 849
                                                        

F.2d 951, 954 (5th Cir. 1988); Tidler v. Eli Lilly &amp; Co., 824
                                                        

F.2d  84, 85-86  (D.C.  Cir.  1987);  Aguirre v.  S.S.  Sohio
                                                             

Intrepid, 801  F.2d 1185,  1189 (9th  Cir. 1986);  Lac Courte
                                                             

Oreilles Band  v. Wisconsin, 760  F.2d 177, 180-81  (7th Cir.
                           

1985).  But see  Useden v. Acker,  947 F.2d 1563, 1570  (11th
                                

Cir. 1991),  cert. denied, 113 S. Ct. 2927, 124 L. Ed. 2d 678
                         

(1993);  Haskell v.  Washington Township,  891 F.2d  132, 133
                                        

(6th Cir. 1989).   In  reaching this  decision, the  circuits

"follow the same relation forward principle as is provided by

[Fed. R. App. P.] 4(a)(2),8  [although they] do not generally

refer to  that rule."  Allan Ides, The Authority of a Federal
                                                             

District Court to Proceed  After a Notice of Appeal  Has Been
                                                             

Filed, 143 F.R.D. 307, 316 (1992) (footnote not in original).
     

                    

8.  Fed.  R. App.  P.  4(a)(2) (pre  1993 amendment)  states:
"Except as provided  in (a)(4)  of this Rule  4, a notice  of
appeal filed after  the announcement of  a decision or  order
but  before the  entry  of the  judgment  or order  shall  be
treated  as filed after such  entry and on  the day thereof."
According to the United States Supreme Court:

     Rule  4(a)(2)  was  intended  to  codify a  general
     practice  in  the  courts  of  appeals  of  deeming
     certain premature notices of appeals effective. . .
     .  The Rule recognizes that, unlike  a tardy notice
     of  appeal,  certain   premature  notices  do   not
     prejudice  the  appellee  and  that  the  technical
     defect  of  prematurity  therefore  should  not  be
     allowed to extinguish an otherwise proper appeal.

FirsTier  Mortgage Co.  v. Investors  Mortgage Ins.  Co., 498
                                                        
U.S. 269, 273, 111 S. Ct. 648, 651, 112 L. Ed. 2d 743 (1991).

                             -9-

The Tenth Circuit, however,  specifically referred to Fed. R.

App. P.  4(a)(2) in  its holding that,  "[w]hen the  district

court  case is still ongoing  at the time  the appeal reaches

this  court's attention,  . . .  [and] a  belated Rule  54(b)

certification  has been  obtained . . .  after the  notice of

appeal was filed, we will deem the  notice of appeal to ripen

as  of  the   date  of  certification  and  will  accept  the

jurisdiction  pursuant to  the savings  provision of  Fed. R.

App. P. 4(a)(2)."  Lewis v. B.F. Goodrich  Co., 850 F.2d 641,
                                              

645  (10th Cir.  1988).   The Fifth  Circuit has  stated that

"giving effect  to the  premature notice of  appeal [after  a

belated  Fed.  R.  Civ.   P.  54(b)  certification  has  been

obtained]  is  in the  spirit of  Fed.  R. App.  P. 4(a)(2)."

Metallurgical Indus.,  Inc. v.  Fourtek, Inc., 771  F.2d 915,
                                             

916 (5th Cir. 1985).  Hence, while the problem might  also be

tackled from some  other direction, Fed.  R. App. P.  4(a)(2)

suggests that a premature notice of appeal relates forward to

the date of a subsequent Fed. R. Civ. P. 54(b) certification.

          Clausen  argues, however,  that,  by  virtue  of  a

recent  ruling by the United States Supreme Court in FirsTier
                                                             

Mortgage Co.  v. Investors  Mortgage Insurance Co.,  498 U.S.
                                                  

269, 111  S. Ct. 648, 112 L. Ed. 2d  743 (1991), Fed. R. App.

P. 4(a)(2)  cannot  rescue Storage  Tank's prematurely  filed

appeal.  There, the Supreme Court decided that,  "under [Fed.

R. App.  P. 4(a)(2)],  a premature  notice of appeal  relates

                             -10-

forward to the date of entry of a final  `judgment' only when
                                                             

the ruling  designated  in the  notice  is a  `decision'  for
                                                             

purposes  of  the  Rule."   FirsTier,  498  U.S.  at 274  n.4
                                    

(emphasis added).   Although Clausen argues  to the contrary,

we  believe  that the  district  court's  December 31,  1992,

amended judgment  was sufficiently a "decision"  for purposes

of Fed. R. App. P. 4(a)(2). 

          In  FirsTier,  the petitioner  filed its  notice of
                      

appeal on  February 8,  1989, after  the  district court  had

announced  from  the  bench, on  January  26,  1989, that  it

intended  to grant summary  judgment for the  respondent.  On

March  3, 1989,  the district  court entered  judgment.   The

question  addressed by  the  Court was  whether the  district

court's bench ruling  was a "decision" under  Rule 4(a)(2) so

that the petitioner's premature notice of appeal would relate

forward  to  the date  of  the  judgment, thereby  conferring

jurisdiction  upon the court of appeals.  In finding that the

bench ruling  was a "decision"  under Rule 4(a)(2),  and that

the  court  of  appeals  had jurisdiction  to  entertain  the

appeal, the Court held that "Rule 4(a)(2) permits a notice of

appeal from a  nonfinal decision  to operate as  a notice  of

appeal  from the  final judgment only  when a  district court

announces a decision that  would be appealable if immediately
                                   

followed by  the entry of judgment."  Id. at 276 (emphasis in
                                         

original).  The Court  qualified this principle by explaining

                             -11-

that Rule 4(a)(2) does not permit a "notice of  appeal from a

clearly interlocutory decision     such as a discovery ruling

or a  sanction order under  Rule 11  of the Federal  Rules of

Civil Procedure     to serve as  a notice of appeal  from the

final judgment."  Id.
                     

          In  this case,  the district  court's December  31,

1992,  amended judgment  was  not literally  a decision  that

would be appealable if immediately  followed by the entry  of

judgment.   This is because,  with third-party claims  as yet

unresolved, the  December 31, 1992, amended  judgment did not

dispose of all the  claims in the case.   Therefore, judgment

could  not perfunctorily  be  entered  following  the  ruling
          

absent the certification called for by Fed. R. Civ. P. 54(b).

To  certify,  the  district  court had  to  make  an  express

determination  of no just reason for delay.  Only having done

so was it  free to enter a  final judgment upon  its December

31,  1992, amended judgment.   Thus,  the December  31, 1992,

amended judgment here does  not, at first blush, seem  to fit

within  the  Court's language  in  FirsTier  and its  progeny
                                           

indicating  that a  decision  that would  be appealable  when

immediately followed  by the  entry of  judgment is  one that

"form[s]  the basis  of a  final judgment  without subsequent

intervention by the district court."  Serine v. Peterson, 989
                                                        

F.2d 371,  373 (9th Cir. 1993); see Strasburg v. State Bar, 1
                                                          

F.3d 468, 472 (7th Cir. 1993) ("Whereas the district court in

                             -12-

FirsTier  had  only ministerial  functions  left  to complete
        

after announcing summary judgment, the district court's order

here  notified the  parties that  they should  expect further

dispositive rulings by the court.").

          On the other hand,  the nonfinal December 31, 1992,

amended   judgment  in   this  case   was  not   irremediably

interlocutory as were the examples the Court used in FirsTier
                                                             

to describe rulings the premature  appeal from which Fed.  R.

App.  P.  4(a)(2) cannot  cure.   The  examples given  were a

discovery ruling or  a sanction  order under Rule  11 of  the

Federal  Rules of Civil Procedure.  There is no commonly used

procedure  for transforming  such interlocutory  rulings into

appealable, final  dispositions, as Rule 54(b)  allows in the

instance of decisions that  dispose of some, but not  all, of

the claims in  a case.   Thus, the  district court's  amended

judgment  in this  case falls  somewhere along  the continuum

between an unalterably interlocutory decision, the notice  of

appeal from which can never serve as a notice of appeal  from

the final judgment, FirsTier, 498 U.S.  at 276, and decisions
                            

that would be appealable  under Rule 4(a)(2) when immediately

followed  by  the entry  of  judgment.   We  ask,  therefore,

whether the district court's amended judgment is close enough

to  a  "decision  that  would be  appealable  if  immediately
                                

followed by the entry  of judgment," id., to be  a "decision"
                                        

                             -13-

for  purposes of  Fed.  R. App.  P. 4(a)(2).   Our  answer is

"Yes."9

          The  district court's  December  31, 1992,  amended

judgment bears  far more similarity to a  decision that would

be  appealable  if  immediately  followed  by  the  entry  of

judgment than  to the purely interlocutory  decrees described

in FirsTier.   Unlike these, the  December 31, 1992,  amended
           

judgment was a decision that purported to  dispose finally of

all  of Clausen's claims against Storage Tank, if not all the

claims in the  lawsuit.   The decision  lacked finality  only

because the district court had to find that there was no just

reason  for delay  and certify  it as  appealable immediately

pursuant  to Fed. R. Civ.  P. 54(b).   Although this required

the district  court to make an  additional finding concerning

the appropriateness of an  immediate appeal, that finding did

not affect the substance or the scope of the amended judgment

from which  the  premature appeal  was taken.   Rather,  once

made,  the district  court's  Fed. R.  Civ.  P. 54(b)  ruling

instantly converted the substance of the former interlocutory

amended  judgment  into  a   wholly  appealable  one  without
                                                             

modifying or enlarging that decision in any way.  
                                               

                    

9.  FirsTier,  of  course, did  not involve  Fed. R.  Civ. P.
            
54(b); hence, the Court should not necessarily be expected to
have anticipated the niceties of the present situation, which
is sui generis.  
              

                             -14-

          The  primary  difference between  the  December 31,

1992,  decision in this case and the bench ruling in FirsTier
                                                             

was  that the  district  court here  could not  perfunctorily

enter  judgment under Fed. R. Civ. P.  58.  Rather, it had to

satisfy itself and certify that  the decision was, in effect,

appropriate for immediate appeal, pursuant to Fed. R. Civ. P.

54(b), notwithstanding its failure to resolve all claims made

in  the lawsuit.10   This difference, however,  does not make

the district  court's December 31, 1992,  amended judgment so

dissimilar from the district court's bench ruling in FirsTier
                                                             

that Storage Tank  should lose the protection of  the savings

clause of  Fed. R. App.  P. 4(a)(2).  In  both instances, the

prematurely-appealed decisions  remained absolutely unaltered

to and through entry of an appealable judgment.    

          Consequently, we  hold that,  by virtue of  Fed. R.

App. P.  4(a)(2), Storage  Tank's premature notice  of appeal

ripened when  the district  court certified its  December 31,

1992, amended judgment pursuant to Fed. R. Civ. P. 54(b).  As

we  have appellate jurisdiction, we turn to the merits of the

appeal.

                             II.

                    

10.  It could be said  that, for the purposes of Fed. R. App.
P. 4(a)(2), a Fed.  R. Civ. P. 54(b) certification  plays the
same role as entry of judgment under Fed. R. Civ.  P. 58.  In
other  words, "entry of judgment," as  that phrase appears in
Fed.  R. App. P. 4(a)(2),  encompasses Fed. R.  Civ. P. 54(b)
certifications.

                             -15-

                         BACKGROUND 

          Storage  Tank  owns  docking  facilities  along the

Piscataqua River in Newington,  New Hampshire.  These include

a  walkway-pier that  first extends perpendicularly  from the

shore line into the  water, and then turns ninety  degrees to

the  left and  extends  upstream.   A concrete  mooring cell,

referred to as Cell Three, is located in the water beyond the

end  of the  walkway-pier.11   Cell  Three,  at the  time  of

Clausen's injury,  was connected to  the end of  the walkway-

pier  by the ramp upon  which Clausen slipped  and fell.  The

ramp sloped downward to Cell Three from the walkway-pier.  In

April 1992, the ramp was replaced by Storage Tank, at Sea-3's

request,  with a set of  steps because the  concrete cell cap

had settled.

          Sea-3  imports  and distributes  petroleum products

throughout New England.   At all material times, Sea-3  had a

first-priority  contractual  right,  under  a  so-called Dock

Agreement with  Storage Tank, to  occupy and use  the docking

facilities.  In  1983, Sea-3  sought to  improve the  docking

facilities by making structural changes to Cell Three.  Sea-3

contracted with Goudreau  to perform the work.   Storage Tank

was not a party to that contract.

                    

11.  The  mooring cells  were filled  with gravel  and capped
with  concrete  to  provide  support  for  the  dolphins  and
bollards upon which vessels attached their mooring lines.

                             -16-

          On February 5, 1989, Goudreau hired Clausen to work

on Cell Three as a  pile driver.  Clausen's first day  on the

job was February  6, 1989,  the day he  suffered his  injury.

When  Clausen arrived  at the job  site at  7:00 a.m.  on the

morning of February 6, 1989, it was snowing.  Between one and

two inches of fresh  snow had accumulated on the dock.   Upon

receiving  permission   to  begin   work,  Clausen   and  his

coworkers,  Daniel  Woundy,  William  Burroughs,  and Kenneth

King,  the foreman, proceeded  down the  walkway-pier towards

Cell Three.  Prior to the group's arrival at Cell Three, King

instructed  Clausen to go back and retrieve an air compressor

hose  that was stored in a guardhouse.  Clausen retrieved the

air compressor hose  and then headed  back down the  walkway-

pier toward the ramp that  connected the walkway-pier to Cell

Three.  Somewhere along the ramp that connected  the walkway-

pier to Cell  Three, Clausen slipped,  fell, and injured  his

back.   

          Immediately  after  the  fall, Clausen  experienced

pain  that radiated down his back to  his ankle.  Despite the

pain, Clausen continued to work until his lunch break.  After

lunch,  Clausen was in too much pain to continue working, and

he decided  to go home for  the day.  Upon  arriving at home,

Clausen  immediately made an  appointment with a chiropractor

for 3:00 p.m. that afternoon.

                             -17-

          For   approximately   eight  weeks   following  the

accident, Clausen  was treated  by his chiropractor.   A  CAT

scan taken two months after the accident revealed a herniated

disk at the L5-S1 level.  Consequently, Clausen was  referred

to  Dr. Gerwin  Neumann, a  neurosurgeon at  the New  England

Baptist  Hospital.  After confirming the  diagnosis of a disk

herniation in L5-S1,  Dr. Neumann, in May 1989, performed the

first of  what would eventually be  five operations performed

on various disks in Clausen's back.

          At  trial,   Clausen,  the  only   witness  to  the

accident,  testified  that the  ramp  on  which  he fell  was

constructed of  what looked  like two-inch thick  by ten-inch

wide "staging  planks" that were joined together  by a couple

of slats.  Clausen further testified that the ramp was ten to

twelve  feet  long and  was covered  by  snow.   According to

Clausen,  the ramp protruded up  over the walkway-pier by ten

to twelve inches so  that he had to step up onto  the ramp in

order  to proceed  down to  Cell Three.   Clausen's testimony

revealed  that he initially stepped up onto the ramp with his

left foot.  He did  not have his hand on the  railing because

it did  not come up high enough for him to reach it.  Clausen

then lifted  his right foot  off the  ground, and, as  he was

about to place it on  the ramp, his left foot slipped  and he

started  to fall.   Clausen  testified that,  as he  fell, he

twisted to the right and twisted back to the left and grabbed

                             -18-

onto  the railing with his right  hand as he was coming down.

Then  he hit  the ramp.   At that point,  Clausen was holding

onto  the railing and had one hand  on the ramp.  He then let

himself go and slid down the ramp the rest of the way to Cell

Three.  According  to Clausen's trial testimony,  once he got

to the bottom, he looked back up and saw a sheet of ice about

one-half inch thick covering the ramp from top to bottom.12

          Based on Clausen's testimony, the defendants argued

at trial  that Clausen had actually slipped on staging planks

that had been placed by Goudreau  employees over the existing

ramp that  connected  the walkway-pier  to  Cell Three.    No

witness testified  at trial, however, to  having seen staging

planks  placed over  the ramp.   To  the contrary,  there was

                    

12.  Clausen's  trial  testimony  did  not  comport  with his
earlier answers  to interrogatories  with regard to  where he
slipped and fell on the ramp.  In response to interrogatories
that  inquired about  how and  where  his fall  had occurred,
Clausen did not state that he slipped as he stepped onto  the
ramp, but  rather answered  that "[t]he incident  occurred at
the junction of the concrete cell and  a gangplank connecting
the cell to the pier" and that "[a]s [he] was moving from the
gangplank to the cell,  [he] was suddenly caused to  slip and
fall."  

     Clausen's trial testimony  was consistent, however, with
previous deposition testimony in which he stated:

     So as I stepped up with  my left foot and I went to
     reach  for [the rail],  I brought my  right foot up
     and  that's when I slipped and fell.  And I twisted
     my  back and as I  came back around,  that's when I
     grabbed ahold of  the railing and I  just fell down
     on my backside.

                             -19-

testimony that the ramp  was "fixed" between the walkway-pier

and  Cell Three  and that  it did  not  protrude up  over the

walkway-pier, but was "flush" with it so that one had to step

down onto the  ramp when walking  to Cell Three.   There  was

further testimony  that the  ramp had  cleats or  treads, ten

inches  to one foot apart,  running crosswise all  the way up

the length of the ramp.  The ramp itself, according to  trial

witnesses,  was approximately  five  feet wide  by five  feet

long.

          Clausen also  testified at trial that  he still had

back  pain  that radiated  down his  left  leg.   Dr. Neumann

testified that there was a direct causal relationship between

the accident on the ramp and Clausen's herniated disks, which

required  five operations  to repair.   He  further testified

that Clausen can lift  no more than fifteen to  twenty pounds

and  is totally  disabled from  a strenuous  job.   He noted,

however,  that,  if  Clausen's  medical  condition  were   to

stabilize, he could engage in sedentary or clerical activity.

          To  establish  damages  at  trial,  Clausen  called

Robert  Doucette,  an  expert  economist,  to  testify  about

Clausen's loss  of earning  capacity.   Doucette said  he had

examined Clausen's tax  returns, copies  of union  contracts,

medical  records, and  statistical information  pertaining to

work-life expectancy.   He  testified that he  used Clausen's

union  contract to calculate Clausen's  base wage rate at the

                             -20-

time  of his injury.   In reliance on  the contract, Doucette

concluded that  Clausen was  earning a gross  hourly wage  of

$18.45 when  the accident  occurred.   He then  adjusted this

figure  upward to  $23.85 per hour  to account  for Clausen's

fringe benefits  under the union contract,  which included an

annuity fund,  a pension fund,  and health  insurance.   From

these  preliminary figures,  Doucette concluded  that it  was

reasonable  to  anticipate  that  Clausen would  have  earned

approximately  $875,000  in  gross  wages  and   $391,000  in

benefits from the  time he was  injured, at age  thirty-four,

through the age of his work-life expectancy.13

          Doucette   adjusted   these   gross    figures   by

subtracting  income  taxes,  adding   the  average  value  of

household  services at minimum wage, and adding a lump sum to

meet income tax liability on interest earnings.  After making

these adjustments, Doucette concluded that the  present value

of Clausen's  earning  capacity on  the  date of  his  injury

totaled approximately $1,250,000.  He explained that this sum

represents the  amount of  economic value that  Clausen could

have been expected to produce if he had not been injured, and

any pecuniary damages attributable  to the injury is measured

                    

13.  According to Doucette, work-life expectancy expresses an
average of  how long a  person may be  expected to be  in the
labor force earning income.   It is a function  of a person's
age, sex, level of education, and activity level.

                             -21-

by  the difference  between  $1,250,000 and  what Clausen  is

still able to earn in the future. 

                             III.

          Storage  Tank contends that the district court made

errors  both during trial and after trial.  Among the former,

Storage Tank  alleges mistaken  evidentiary rulings  and jury

instructions.  It argues that the district court erred in (1)

allowing evidence of subsequent remedial  measures undertaken

on  the ramp  where  Clausen slipped  and  fell, (2)  denying

Storage  Tank's  counsel  the  opportunity  to  cross-examine

Clausen's  economist,  Doucette,  on  the  subject  of  union

benefits that  Clausen allegedly received after the accident,

and  (3)  instructing  the   jury  to  assess  fault  against

Goudreau, a non-party to the trial.  In the category of post-

trial error, Storage Tank objects to the district court's (1)

refusal to file its  Renewed Motion for Judgment as  a Matter

of Law,  (2) denial of its Motion for Judgment as a Matter of

Law,  and (3)  denial of  its  Motion to  Alter or  Amend the

Judgment.

          We find merit in none of these arguments.

A.   Alleged Trial Errors

     1.   Evidence of Subsequent Remedial Measures
                                                  

          Storage Tank complains of the allowance of evidence

that,  in 1992, Storage Tank, at  Sea-3's request, replaced a

ramp on which  Clausen fell with  a set of  steps.  Prior  to

                             -22-

trial, Storage Tank had  filed a motion in limine  seeking to

exclude evidence  of the changes made to the ramp both on the

issues of negligence and control.  Storage Tank argued in its

motion that  evidence  of  subsequent  remedial  measures  is

inadmissible  under Fed.  R. Evid.  40714 to  prove negligent

or culpable conduct.  It also contended that,  although there

was  an unresolved issue in  the case about whether Goudreau,

Storage  Tank,  Sea-3,  or  some  combination  of  the  three

controlled the area where  Clausen fell, the evidence of  the

ramp's replacement  in this case carried  no probative weight

with  regard to the control issue.  The district court denied

Storage Tank's motion in limine, but limited the scope of the

evidence to  the issue of who had control over the area where

Clausen's  injury occurred.   At  the end  of the  trial, the

district  court gave the jury a  limiting instruction to this

effect.

                    

14.  Fed. R. Evid. 407 states:

          When,  after  an  event,  measures  are  taken
     which, if  taken  previously, would  have made  the
     event  less  likely  to   occur,  evidence  of  the
     subsequent  measures  is  not admissible  to  prove
     negligence  or culpable conduct  in connection with
     the  event.    This   rule  does  not  require  the
                                                        
     exclusion of  evidence of subsequent  measures when
                                                        
     offered  for  another  purpose,  such   as  proving
                                                        
     ownership, control, or feasibility of precautionary
                                                        
     measures, if controverted, or impeachment.
                                               

(emphasis added).

                             -23-

          On appeal, Storage  Tank insists that the  district

court  should not have allowed Clausen to introduce  evidence

of the replacement of the ramp under the control exception to

Fed. R.  Evid. 407.  It contends  that the probative value of

the evidence  was "substantially outweighed by  the danger of

unfair prejudice, confusion of  the issues, or misleading the

jury."    Fed. R.  Evid.  403.15   Clausen  asserts, however,

that  we need not reach the merits of Storage Tank's argument

because  it did not preserve  the issue for  appeal by timely

objecting  at trial to the  admission of the  evidence of the

ramp's replacement.  We agree.

          During  the  charging  conference,   the  following

exchange occurred:

     Mr. Clinton:   First  of  all,   your  Honor,   the
     remedial  instruction with  regard to the  issue of
     control  of the  stairs  in 1992  was only  for the
     purpose of control.

     The Court:     In other words, you admitted it only
     for the  purpose of control and  not for liability?
     When it came in, there was no objection.  I was    

     Mr. Clinton:   Well, I objected.

                    

15.  Fed. R. Evid. 403, in full, states:

          Although relevant, evidence may be excluded if
     its probative value is substantially  outweighed by
     the  danger of unfair  prejudice, confusion  of the
     issues,   or    misleading   the   jury,    or   by
     considerations of  undue delay, waste  of time,  or
     needless presentation of cumulative evidence.

                             -24-

     The Court:     When?  Not when it  was offered, not
     when it came in.  I'll be glad to put in  something
     like that, but I was sitting here waiting    

     Mr. Clinton:   I filed  a motion in  limine instead
     of repeating.  You denied the motion  in limine, so
     I figured you ruled.

     The Court:     But when no objection came, I didn't
     know  at that  point whether  you had  changed your
     position or what. . . .

From this colloquy,  it appears that  Storage Tank felt  that

the district court's earlier denial  of its motion in  limine

had relieved it of any need to object to the admission of the

evidence  of the subsequent repair at the time it was offered

at trial. 

          In United  States v.  Reed, 977  F.2d 14  (1st Cir.
                                    

1992), we said that "[a] motion in limine without subsequent,
                                         

contemporaneous  objection  at trial,  .  .  . is  ordinarily

insufficient to preserve  an evidentiary ruling for  appeal."

Id. at 17 (citing Fed. R.  Evid. 103(a)).  More recently,  we
   

expanded upon this general proposition by holding:

          Where  an  objection   to  evidence  has  been
     overruled in limine, it makes sense to require that
     the  objection   be  renewed  at  trial.    However
     definite the denial of  the motion to exclude prior
     to  trial, it is  child's play for  the opponent of
     the  evidence  to  renew  the  objection  when  the
     evidence  is actually  offered; and  requiring this
     renewal   gives  the   trial  judge  a   chance  to
     reconsider  the ruling  with the  concrete evidence
     presented in the actual context of the trial.

Fusco v. General  Motors Corp.,  11 F.3d 259,  262 (1st  Cir.
                              

1993);  see, e.g., United States v. York, 933 F.2d 1343, 1360
                                        

(7th Cir.) (holding  that "`[a] party whose  motion in limine

                             -25-

has  been  overruled must  object  when the  error  the party

sought to  prevent  is about  to  occur at  trial'"  (quoting

United  States  v.  Roenigk,  810 F.2d  809,  815  (8th  Cir.
                           

1987))),  cert. denied,  112 S. Ct.  321, 116  L. Ed.  2d 262
                      

(1991); United States v. Khoury, 901 F.2d 948, 966 (11th Cir.
                               

1990)  ("A defendant  must  object at  trial  to preserve  an

objection on  appeal; the  overruling of  a motion in  limine

does  not suffice."); Wilson  v. Waggener, 837  F.2d 220, 222
                                         

(5th Cir. 1988) ("A party whose motion in limine is overruled

must renew his  objection when  the evidence is  about to  be

introduced  at trial.").   As the Fifth  Circuit explained in

Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980):
                      

     Motions  in  limine  are  frequently  made  in  the
     abstract and  in anticipation of  some hypothetical
     circumstance that may not develop at trial.  When a
     party files numerous  motions in limine,  the trial
     court  may not  pay  close attention  to each  one,
     believing   that   many   of   them    are   purely
     hypothetical.  Thus, a party whose motion in limine
     has been  overruled must  object when the  error he
     sought to prevent with his motion is about to occur
     at  trial.   This  will  give  the trial  court  an
     opportunity to reconsider the grounds of the motion
     in    light    of     the    actual  instead     of
     hypothetical  circumstances at trial.

Id. at 784. This  rule "discourage[s] counsel from refraining
   

from making an  objection at  trial in order  to reserve  the

opportunity to  assert reversible  error on appeal."   United
                                                             

States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987).
                 

          Because  Storage Tank  failed  timely to  object at

trial  to  the  admission   of  evidence  of  the  subsequent

                             -26-

alteration  to  the  ramp in  1992,  we  review the  district

court's decision to allow such evidence only for plain error.

Reed,  977 F.2d  at 17;  see Fed.  R. Evid.  103(d).   "Plain
                            

error, however,  is a rare species in  civil litigation . . .

."  Gay v. P.K. Lindsay Co., 666 F.2d 710, 712  n.1 (1st Cir.
                           

1981), cert. denied, 456 U.S. 975, 102 S. Ct. 2240, 72 L. Ed.
                   

2d  849 (1982).   Even in criminal  cases, in the  absence of

proper   objection  we  will   "`correct  only  `particularly

egregious errors'  . . . that `seriously affect the fairness,

integrity  or public  reputation of  judicial proceedings,''"

United  States  v. Nason,  9 F.3d  155,  160 (1st  Cir. 1993)
                        

(quoting  United States v. Young, 470  U.S. 1, 15, 105 S. Ct.
                                

1038, 1046, 84 L. Ed.  2d 1 (1985) (quoting United  States v.
                                                          

Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d
     

816  (1982))),  cert. denied,     S.  Ct.    , 1994  WL 69882
                            

(1994), and we  will reverse only  in "`exceptional cases  or

under peculiar  circumstances to prevent  a clear miscarriage

of justice,'" id. at  161 (quoting United States v.  Griffin,
                                                            

818 F.2d 97, 100  (1st Cir.), cert. denied, 484 U.S. 844, 108
                                          

S. Ct. 137, 98 L.  Ed. 2d 94 (1987)); accord Gay, 666 F.2d at
                                                

712  n.1.   It  is utterly  clear  that the  district court's

decision  to permit the evidence  of the changes  made to the

ramp in 1992, whether right or wrong, was not plain error.

          Although Fed. R. Evid. 407 proscribes the admission

of   evidence  of  subsequent  remedial  measures  to  "prove

                             -27-

negligence or culpable conduct,"  it allows such evidence, as

already  noted, "when  offered for  another purpose,  such as

proving .  . .  control."   Fed. R. Evid.  407.   The parties

agree that control  of the ramp  area where Clausen's  injury

occurred was a material issue in this case.  According to the

appellant, one aspect of the control issue arose because both

Storage Tank and  Sea-3 asserted that Goudreau was in control

of the work site and was, therefore, responsible for clearing

and  sanding the  area  where the  plaintiff  fell.   Clausen

points  out that a second aspect of the control issue in this

case,  not  alluded  to  by Storage  Tank,  involved  whether

Storage  Tank, Sea-3,  or both  jointly, controlled  the area

where Clausen fell if Goudreau, at that time, did not control

the ramp.16

          To be  sure, Storage Tank argues  that the evidence

that  it made  changes to  the ramp  at the request  of Sea-3

subsequent to  Clausen's accident was  inadmissible under the

                    

16.  The  trial judge's  summary of  the control  issue sheds
additional light on the parties' arguments:

     As  I understand  it,  and as  I'm putting  it, the
     defendants,  one, deny that  there was an accident,
     two, they say  if there was  an accident, each  one
     denies that  it was responsible  and maintains that
     any  fault  was that  either  of  the plaintiff  or
     Goudreau or both, and to each one there's an  issue
     as to who was  in control of the premises.   You're
                                                        
     not  in agreement  on that,  although you  both say
                                                        
     that Goudreau  was in control of  the premises, but
                                                        
     if not, then who was?
                          

(emphasis added).

                             -28-

control exception to Fed.  R. Evid. 407 because  the evidence

failed  to satisfy  the independent  requirements of  Fed. R.

Evid. 403.  Storage Tank maintains that, because the ramp was

replaced in 1992,  approximately three years  after Clausen's

fall, the evidence  is not probative of  whether Storage Tank

or Sea-3  controlled the ramp, either  separately or jointly,

in 1989,  particularly since, according to  Storage Tank, the

area had been exclusively occupied by Goudreau when Clausen's

injury occurred.  Whatever can be said for such arguments had

Storage Tank preserved its right to argue the merits, they do

not come close to  demonstrating that it was plain  error for

the district  court to believe  that the evidence  carried at

least  some probative weight as to who controlled the ramp in

1989.

          Storage  Tank  also suggests  that  it  was greatly

prejudiced because the jury may have used the evidence of the

ramp's  replacement  for an  improper  purpose.   The  judge,

however,  instructed  the   jury  that  "[e]vidence   of  the

subsequent  installation   of  stairs  in  1992  is  evidence

relevant  only on  the issue  of control.   It  is not  to be

considered evidence of liability or fault."  According to the

advisory  committee's  notes  to  Fed. R.  Evid.  403,  "[i]n

reaching a decision  whether to exclude on  grounds of unfair

prejudice,  consideration should  be  given to  the  probable

effectiveness  or  lack   of  effectiveness  of   a  limiting

                             -29-

instruction."  Although limiting instructions  may not always

be effective,  see, e.g.,  United States v.  Garcia-Rosa, 876
                                                        

F.2d  209, 221-22  (1st Cir.  1989), cert.  denied, 493  U.S.
                                                  

1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990), cert. granted
                                                             

&amp; vacated on other grounds, 498 U.S. 954, 111 S. Ct. 377, 112
                          

L.  Ed.  2d 391  (1990), the  inadequacy of  the one  in this

situation  is scarcely so patent  as to support  a finding of

plain error.  We do not readily assume that a jury disregards

clear directions.  See Gutierrez-Rodriguez v.  Cartagena, 882
                                                        

F.2d 553, 574 (1st Cir. 1989).  

          We are satisfied that admission of the evidence was

not plain error.

     2.   Cross-Examination of Clausen's Expert, Doucette
                                                         

          At  trial,  Clausen  testified  that,  as  a  union

member,  he  had   enjoyed  certain  union  employee   fringe

benefits, including a  pension plan, an  annuity fund, and  a

"health and welfare dental plan."   Clausen did not  mention,

in  this   regard,  workers'  compensation   payments,  union

disability  benefits, or social security disability benefits.

Later  in the  trial, Clausen's  expert, Doucette,  estimated

Clausen's  pecuniary damages  (i.e.,  lost future  earnings),
                                   

including  wages  and fringe  benefits  lost  because of  his

inability to  perform his former  job due to the  injury.  In

determining this figure, Doucette testified that Clausen,  at

the time  of his injury, had  earned "a gross hourly  wage of

                             -30-

$18.45  per hour."  He  also testified that  Clausen had then

enjoyed  fringe benefits    consisting of "an annuity fund, a

pension  fund,  and  health  and  welfare,  which  is  health

insurance"     the  gross future  value of  which, calculated

from  the time of Clausen's  injury through his  age of work-

life expectancy, totaled $391,000.   Doucette did not mention

workers' compensation payments, union disability benefits, or

social security disability benefits.

          Prior  to  cross-examining  Doucette,  counsel  for

Storage Tank requested 

     a  ruling that [he] be allowed on cross-examination
     to go into the  union benefits, such as [Clausen's]
                                                        
     disability benefits that  he's currently  receiving
                                                        
     and  any Social Security  benefits, since they have
                                                        
     opened it up by bringing it in as being factors.
                                                    

(emphasis added).  Counsel  for Clausen strenuously objected,

saying  the   mentioned  evidence   had  gone  "only   as  to

[Clausen's] earnings," there being "nothing said with respect

to [Clausen]  being economically  deprived now because  of no

money  or  anything  like that."    After  hearing  from both

parties,  the  court  denied  Storage  Tank's  request.    In

response, Storage Tank's counsel made an offer of proof: 

     Note  my exception,  your Honor,  but on  the basis
     this is the collateral  [source rule].  He's raised
     the  issue.   This is  an offer.   He's  raised the
     [issue] of  fringe benefits  under unions and  he's
     currently receiving disability benefits.

          The  district court  denied Storage  Tank's request

undoubtedly  because of  New  Hampshire's  collateral  source

                             -31-

rule,17   which   provides  that   "a   plaintiff   [who]  is

compensated  in  whole or  in part  for  his damages  by some

source  independent  of  the  tort-feasor  .  .  .  is  still

permitted  to make  full recovery against  him."   Moulton v.
                                                          

Groveton Papers Co.,  114 N.H.  505, 509, 323  A.2d 906,  909
                   

(1974).   According to the  Supreme Court  of New  Hampshire,

"[t]he rule that collateral  benefits are not subtracted from

the plaintiff's  recovery has  been applied to  benefits paid

under  an  insurance  policy  or  by  a  relief  association;

employment benefits; gratuitous payments;  social legislation

benefits  such  as social  security,  welfare, pensions;  and

benefits received under  certain retirement acts."   Id.  One
                                                        

commentator has  observed that "[t]he most  obvious effect of

the collateral source rule is that it `enables a plaintiff to

reap  a double recovery in certain  circumstances.'  In other

words,  `[t]he collateral source rule  is an exception to the

general  rule that  damages  in tort  should be  compensatory

only.'"  Joel K. Jacobsen, The Collateral Source Rule and the
                                                             

                    

17.  "Properly  analyzed,  the  collateral source  rule  is a
substantive  rule of  damages and  not  a rule  of evidence."
Joel  K. Jacobsen, The Collateral Source Rule and the Role of
                                                             
the Jury, 70 Or. L. Rev. 523, 526 (1991);  see, e.g., McInnis
                                                             
v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir. 1985) ("[I]t  is
               
well  recognized that  Congress did  not intend  the [Federal
Rules of Evidence] to preempt . . . `substantive' state rules
. . . such as the . . . collateral source rule . . . .").  In
their Joint Pretrial Memorandum, the parties agreed that "New
Hampshire  tort law and contract law  govern the legal rights
and  duties of all parties at issue herein."  Accordingly, we
will abide by New Hampshire's collateral source rule.

                             -32-

Role of  the Jury, 70  Or. L. Rev.  523, 524  (1991) (quoting
                 

Chenoweth  v. Schaaf, 576 F. Supp. 1556, 1558 (W.D. Pa. 1984)
                    

and Overton v. United  States, 619 F.2d 1299, 1306  (8th Cir.
                             

1980) in that order).18

          Although  New  Hampshire's  collateral source  rule

serves  substantive  state  policies,  its  application  also

affects the  admissibility of certain evidence.   Courts have

held,  for  instance,  that,   under  the  Federal  Rules  of

Evidence, "evidence  of collateral benefits  [ordinarily] has

                    

18.  Courts have expressed various  policy rationales for the
collateral  source   rule.     "Most  fall  into   two  broad
categories.   The rule is  intended either (1)  to punish the
tortfeasor, or (2)  to ensure that the injured party receives
benefits for which he or she has contracted."   Jacobsen, The
                                                             
Collateral Source Rule and  the Role of the Jury,  supra note
                                                        
17,  at  528.    The  Supreme  Court  of  New  Hampshire  has
summarized these rationales as follows:

     The   basic  argument  advanced  for  [the  rule's]
     application is  that a  tort-feasor  should not  be
     allowed to escape the consequences  of his wrongful
     act  merely  because  his  victim  has  received  a
     benefit  from  a   collateral  source  which  would
     constitute  a windfall to  the defendant wrongdoer.
     It is  also pointed out that in  many instances the
     plaintiff has  paid for these benefits  in the form
     of insurance premiums  or concessions in  the wages
     he received  because of  such fringe benefits.   If
     such  considerations   are  not  present   and  the
     payments are gratuitous, it is maintained  that the
     maker of  these payments did not  intend to relieve
     the tort-feasor of any liability, but rather to aid
     the plaintiff  by doing him a  favor. . . .   It is
     also  argued  that the  collateral  source rule  is
     designed  to  offset   the  inability  of  ordinary
     damages   to   adequately  compensate   an  injured
     accident victim.

Moulton v.  Groveton Papers  Co., 114 N.H.  505, 509-10,  323
                                
A.2d 906, 909 (1974).

                             -33-

no relevance in the lawsuit,"  Phillips v. Western  Co. of N.
                                                             

Am., 953 F.2d 923, 930 (5th Cir. 1992), because the existence
   

of such benefits is of no  consequence to the trier of fact's

determination  of damages.  See Fed. R. Evid. 401.  "Evidence
                               

that is not  relevant, of course, is not admissible.  Fed. R.

Evid. 402."  Phillips, 953 F.2d at 930.
                     

          In  some cases,  however, federal  courts, although

subject  to a  state's collateral  source rule,  have allowed

evidence of  collateral payments when relevant  to some other

issue.  Courts have  allowed defendants to introduce evidence

of  collateral  payments  to  show malingering  or  to  rebut

misleading testimony given on direct examination.  See, e.g.,
                                                            

DeMedeiros v.  Koehring Co.,  709  F.2d 734  (1st Cir.  1983)
                           

(affirming  the  district  court's   decision  to  allow  the

defendants  to  introduce  evidence  that the  plaintiff  was

receiving  $185 per week  in workers' compensation disability

benefits for  the limited purpose of  proving the plaintiff's

motivation  in declining an employment opportunity); Lange v.
                                                          

Missouri Pac. R.R.  Co., 703  F.2d 322, 324  (8th Cir.  1983)
                       

(finding that "evidence concerning [the  plaintiff's] receipt

of workers'  compensation benefits  was relevant to  test the

credibility of plaintiff's assertion that he had to return to

work  immediately  after  the   surgery  because  he  had  no

disability  income").   Evidence  of collateral  payments has

also  been allowed  on cross-examination after  the plaintiff

                             -34-

has  specifically  referred   to  such  payments  on   direct

examination.   Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir.
                                

1980) (affirming  the district court's decision  to allow the

defendant  on cross-examination  to elicit  information about

collateral source  payments referred  to by the  plaintiff on

direct examination).

          Here, Storage Tank argues, citing Haskins, that the
                                                   

district court erred in  denying its request to cross-examine

Doucette  on the  issue of  disability benefits  that Clausen

received after  the accident because Doucette  had raised the

issue  of employee benefits on direct examination.  We do not

agree.   Storage Tank's  counsel sought permission  to cross-

examine Doucette as to "disability benefits that [Clausen] is

currently receiving and any Social Security benefits."  These

were not the benefits Clausen and Doucette had testified were

lost  by reason  of  Clausen's injury     Doucette  mentioned

Clausen's loss  of  "an annuity  fund,  a pension  fund,  and

health and welfare, which is health insurance."  The district

court  had  good  reason  to  think  that  Storage  Tank  was

proposing to  delve into  different contemporary  benefits in
                                   

order to persuade the jury to reduce its damages award by the

amount  of  collateral  payments  that were  currently  being

received  from  other  sources  by  the  disabled  plaintiff.

Preventing such  inquiry was consistent  with New Hampshire's

collateral source  rule.    If Storage  Tank  had  wished  to

                             -35-

examine  Doucette  on  the  accuracy of  his  projections  of

Clausen's economic loss relative to the annuity fund, pension

fund, and health insurance,  it needed to say so,  see infra,
                                                            

rather than  merely saying  it wanted to  cross-examine about

disability  and social  security benefits  now being  paid to

Clausen.  

          Storage  Tank's reliance  on Haskins  is misplaced.
                                              

In  Haskins,  the  plaintiff,  on   direct  examination,  had
           

testified  that  certain medical  bills  had  been paid  from

collateral  sources, namely,  Blue  Cross, Blue  Shield,  and

Medicaid.     The  district  court  allowed  the  defendant's

attorney to "elicit[] further information concerning the type

and scope  of the collateral source payments."   Haskins, 612
                                                        

F.2d at 375.   Here, by contrast, Clausen and  Doucette never

testified  that  Clausen   was  receiving  collateral  source

payments  (e.g.,  workers'  compensation,   union  disability
               

benefits, or  social security disability  benefits).  Rather,

they  testified  that Clausen  had  permanently lost  certain

employee  benefits  by  reason  of his  accident  (i.e.,  "an
                                                       

annuity  fund, a pension fund, and health and welfare").  The

district  court  could  reasonably  believe  that  Doucette's

testimony   concerning  the  purported  value  of  particular

benefits  that  Clausen had  allegedly  lost  because of  his

injury  did   not  "open  the   door"  to   cross-examination

                             -36-

concerning  the  receipt by  Clausen of  what appeared  to be

different benefits.19   

          We recognize  that there  is some force  to Storage

Tank's  argument, relying on Lange, that, notwithstanding the
                                  

collateral  source  rule,  it was  entitled  to cross-examine

Doucette regarding  Clausen's receipt of  disability benefits

to show that  Clausen had not actually lost employee benefits

as indicated by Doucette on direct examination.  In this same

vein,  Storage  Tank asserts  that,  had  the district  court

permitted it to demonstrate on cross-examination that Clausen

had not  lost his  employee benefits, it  would have  thereby

impeached  Doucette's credibility.    We need  not reach  the

merits  of these  arguments,  however,  because Storage  Tank

raises them for the first time on appeal. 

          We have held that "[a] party may not claim error on

appeal in the exclusion of evidence unless the district court

was told not only  what the party intended to prove  but also

for what purpose."   Tate v. Robbins &amp;  Myers, Inc., 790 F.2d
                                                   

10, 12 (1st Cir. 1986) (citing 1 Jack B. Weinstein &amp; Margaret

                    

19.  We note that "[t]rial  judges retain broad discretion to
impose  reasonable   limitations  on  the  scope   of  cross-
examination,"  United States v. Alvarez, 987 F.2d 77, 82 (1st
                                       
Cir.) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
                                     
S. Ct.  1431, 1435, 89 L.  Ed. 2d 674  (1986)), cert. denied,
                                                            
114  S.  Ct.  147 (1993),  and  "[w]e  review  district court
limitations on cross-examination for `abuse  of discretion,'"
United States v. Carty,  993 F.2d 1005, 1010 (1st  Cir. 1993)
                      
(quoting  United States  v.  Boylan, 898  F.2d 230,  254 (1st
                                   
Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 139, 112 L. Ed.
                   
2d 106 (1990)). 

                             -37-

A. Berger,  Weinstein's Evidence    103[03], at  103-33 (1985
                                

ed.) ("In making an offer of proof counsel must be careful to

articulate   every  purpose   for   which  the   evidence  is

admissible; a purpose not identified at the trial level  will

not provide a basis for reversal on appeal.")).  Accordingly,

"if  evidence is excluded because it  is inadmissible for its

only  articulated  purpose,  the proponent  of  the  evidence

cannot  challenge the ruling on appeal on the ground that the

evidence  `could  have  been  rightly  admitted  for  another

purpose.'"  Id. (quoting 1 Kenneth S. Broun et al., McCormick
                                                             

on Evidence   51, at [199 (1992)]).
           

          At  trial, Storage  Tank argued  that it  should be

allowed  to cross-examine  Doucette about  certain collateral

source payments received by Clausen because he (Doucette) had

referred during direct  examination to other employee  fringe

benefits  lost by  Clausen after  his injury.    The district

court  rejected  this  argument.    See  discussion,   supra.
                                                            

Counsel for Storage Tank at no time stated that the proffered

evidence  (i.e., that  Clausen was  receiving  disability and
               

social security  benefits) should be admitted  either to show

that Clausen had  not, in fact, suffered  damages through the

loss of his annuity fund, pension plan, or health  insurance,

or  to  impeach  Doucette's  credibility.    These  arguments

cannot, therefore, be entertained.

                             -38-

     3.   Including   Goudreau  in  the  Proration  of  Fault
                                                             
          Instruction to the Jury
                                 

          The parties  filed with the district  court a Joint

Request  for  Special Jury  Questions,  which  was signed  by

counsel  for  Clausen, Storage  Tank,  and  Sea-3, and  which

formed the  basis of the special  verdict questions submitted

to  the jury.   This  document  contained, among  others, the

following questions:

     3.(a)     Was Goudreau Corp. negligent?

                             ***

       (b)     If  so, was  the  negligence of  Goudreau
               Corp.  a  proximate cause  of plaintiff's
               injury?

                             ***

     5.        State in what percentage  the plaintiff's
               negligence  and   defendants'  negligence
               caused  or  contributed  to the  injuries
               alleged.

               Eric Clausen's negligence:          %

               Storage Tank Development Corp.'s
               negligence:                         
                    %

               Sea-3, Inc.'s negligence:           %

               Goudreau Corp.'s negligence:        %

                                               100 %
                                                   

Although counsel for Storage Tank and Sea-3 had signed-off on

these  questions, during  a charging  conference held  on the

afternoon of  the  third  day  of trial,  counsel  for  Sea-3

objected to the  inclusion of Goudreau on the special verdict

                             -39-

form.  Specifically, counsel for Sea-3 argued to the district

court that "we should  not have Goudreau Corporation, because

they're  not a party to this case,  and . . . to include them

would  confuse the  jury  with respect  to finding  liability

against  a party that's not here."  Counsel for Sea-3 further

asserted that  "[m]y concern is  that we have  an [indemnity]

action against Goudreau . . . [a]nd I don't want this  jury's

finding to be on  that process [sic], and, hence, I object to

its presence  here."  Counsel for Storage Tank neither joined

in   Sea-3's  objection  nor  expressed  any  dissatisfaction

whatsoever  with the  inclusion  of Goudreau  in the  special

verdict questions.

          Counsel  for Sea-3  again raised  his objection  to

Goudreau's inclusion  in the  special verdict  questions just

prior  to  the  district court's  charge  to  the  jury.   He

maintained  that his  only problem  with the  special verdict

questions  was  "the inclusion  of  Goudreau."   Counsel  for

Storage  Tank,  on the  other hand,  stated  that he  had "no

problem" with the special  verdict questions and that  he had

"no objection" to the  instructions.  Notwithstanding Sea-3's

objection, the  district court did not  exclude Goudreau from

the special  verdict questions, which were given  to the jury

in nearly  identical form  to the  Joint Request  for Special

Jury Questions submitted previously by the parties.   

                             -40-

          On appeal, Storage  Tank argues  that the  district

court  committed reversible  error  by allowing  the jury  to

assign liability to Goudreau because Goudreau was not a party

defendant  at trial.  It contends that the district court, by

allowing  the  jury  to  apportion  fault  against  Goudreau,

violated  N.H. Rev. Stat. Ann.    507:7-e, I(a) (1986), which

orders  the trial court to  "[i]nstruct the jury to determine

. . . the  amount of damages  to be awarded  to each claimant

and  against   each   defendant  in   accordance   with   the

proportionate fault of  each of the  parties."  Storage  Tank

interprets  this statute to mean that it is impermissible for

a  trial court to instruct  a jury to  find the proportionate

fault of a non-party.   In this context, Storage  Tank argues

that Goudreau was not a party in its trial with Clausen, and,

therefore, the district court, by virtue of    507:7-e, I(a),

erred  by instructing  the  jury to  apportion fault  against

Goudreau.

          Clausen   counters   Storage  Tank's   argument  by

asserting that Storage Tank failed to preserve for appeal the

issue that the district  court did not comply with  N.H. Rev.

Stat.  Ann.   507:7-e, I(a).  He points out that Storage Tank

not only  asked that Goudreau be included  in special verdict

questions  in the  parties'  Joint Request  for Special  Jury

Questions,  but also failed to object  to the special verdict

questions at any time during trial.  We agree with Clausen.

                             -41-

          Fed. R. Civ. P.  51 states, inter alia,  that "[n]o
                                                

party may assign as error  the giving or 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."
                                                           

(emphasis   added).      "This  rule   applies   to   special

interrogatories  as well  as verbal  instructions."   Phav v.
                                                          

Trueblood, Inc., 915 F.2d  764, 769 (1st Cir. 1990).  We have
               

held that

     a litigant who  accedes to  the form  of a  special
     interrogatory will  not be heard to  complain after
     the  fact. .  . .   If  a slip  has been  made, the
     parties    detrimentally    affected    must    act
     expeditiously to cure  it, not lie in  wait and ask
     for  another trial  when  matters turn  out not  to
     their liking.

Anderson v. Cryovac, Inc., 862 F.2d 910, 918 (1st Cir. 1988).
                         

Here, Storage Tank acceded to the form of the special verdict

questions; it participated in  the parties' Joint Request for

Special Jury  Questions, and  then informed the  trial judge,

just  before he instructed the jury, that it had "no problem"

with the  special verdict questions.   "It follows inexorably

that  [Storage  Tank  has]  waived  the  right  to  press  an

objection on appeal."   La Amiga del Pueblo, Inc.  v. Robles,
                                                            

937 F.2d 689, 692  (1st Cir. 1991); see Toscano  v. Chandris,
                                                             

S.A.,  934 F.2d  383,  384-85 (1st  Cir.  1991) ("[W]hen  the
    

appellants sat  idly by and allowed  the court's instructions

                             -42-

to the jury to  stand unchallenged, they waived the  right to

press the objections which they now attempt to advance.").

          Nor  can we  say that  it was  plain error  for the

district court  to ask the jury in  special verdict questions

to assign fault  to Goudreau.  As we have noted, "[t]he plain

error standard, high  in any event, . . .  is near its zenith

in the Rule  51 milieu."   Toscano, 934 F.2d  at 385.   "[I]t
                                  

applies only where the error results in  a `clear miscarriage

of justice' or seriously  affects `the fairness, integrity or

public reputation of judicial  proceedings.'"  Phav, 915 F.2d
                                                   

at 769  (quoting Smith v. Massachusetts  Inst. of Technology,
                                                            

877 F.2d 1106, 1110  (1st Cir.), cert. denied, 493  U.S. 965,
                                             

110 S. Ct. 406, 107 L. Ed. 2d 372 (1989)).  In this instance,

the district court's special  verdict questions, if erroneous

at all, did not reach the pinnacle of fault envisioned by the

plain error standard.20

B.   Alleged Post-Trial Errors

     1.   Refusal to File  Storage Tank's Renewed  Motion for
                                                             
          Judgment as a  Matter of Law and  Denial of Storage
                                                             
          Tank's Motion for Judgment as a Matter of Law
                                                       

          At the end of evidence, Storage Tank filed a Motion

for Judgment as  a Matter  of Law, which  the district  court

                    

20.  The Supreme Court of New Hampshire has not addressed the
issue and it  is unclear,  insofar as we  are aware,  whether
third-party defendants, who are not involved in the immediate
trial involving  the plaintiff  and the defendant(s),  are or
are not "parties"  as that  term appears in  N.H. Rev.  Stat.
Ann.   507:7-e.    

                             -43-

denied.  Within ten days after the entry of judgment, Storage

Tank  filed, pursuant  to Fed.  R. Civ.  P. 50(b),  a Renewed

Motion for Judgment  as a Matter of Law.   The district court

refused to file the later motion because it failed to include

a certificate  of compliance with  U.S. Dist. Ct.  R., D.N.H.

11(b).21   On appeal, Storage  Tank assigns error  to both of

these decisions. 

          a.   Refusal to File Storage Tank's  Renewed Motion
                                                             
               for Judgment as a Matter of Law
                                              

          Storage  Tank initially contends  that the district

court erred  in  refusing  to  file its  Renewed  Motion  for

Judgment as a Matter  of Law for failure to comply  with U.S.

Dist.  Ct. R., D.N.H 11(b).  According to Storage Tank, Local

Rule 11 does not apply to  a Renewed Motion for Judgment as a

Matter of Law.  We disagree.

          U.S.  Dist.  Ct.  R., D.N.H.  11(a)(1)  states that

"[m]otions other than during trial will be considered only if
                                  

submitted separately from other pleadings on a document using

the word `Motion' in the  title.  The Clerk shall  not accept

                    

21.  District of New Hampshire Local Rule 11(b) states:

     (b)  SEEKING CONCURRENCE IN MOTIONS

          The moving  party shall  certify to  the court
     that  he has  made a good  faith attempt  to obtain
     concurrence in  the relief  sought.  If  the moving
     party has obtained concurrence,  he shall so  state
     in the body of the motion so the court may consider
     it without delay.

                             -44-

any  motions not  in compliance  with procedures  outlined in

these Rules."   (emphasis  added).  Assuming,  arguendo, that
                                                       

the phrase "any motions" in the second sentence of Local Rule

11(a)(1)  means "any  motions other  than during  trial," the

issue  becomes whether  a Renewed  Motion for  Judgment as  a

Matter of Law  is a  trial motion,  which is  not subject  to

Local Rule 11, or  a "motion other than during  trial," which

is subject to  Local Rule  11.  Like  the district court,  we

conclude  that a Renewed Motion  for Judgment as  a Matter of

Law,  which may be filed as many  as ten days after the entry

of  judgment, is a "motion other than during trial" that must

comply with the strictures of Local Rule 11(b).  Accordingly,

the  district court was entitled to enforce its local rule by

refusing to  file Storage Tank's Renewed  Motion for Judgment

as a Matter of  Law, and we cannot say that,  by doing so, it

engaged  in a clear injustice.  See Atlas Truck Leasing, Inc.
                                                             

v. First NH  Banks, Inc., 808 F.2d  902, 903 (1st Cir.  1987)
                        

("We will reverse  [the district court's]  determination only

if the ruling  results in  clear injustice.").   We note,  in

this regard, that Storage Tank's proffered Renewed Motion for

Judgment  as a Matter of  Law was virtually  identical to its

earlier Motion for  Judgment as  a Matter of  Law, denial  of

which is reviewable on appeal.

          b.   Denial of  Storage Tank's Motion  for Judgment
                                                             
               as a Matter of Law
                                 

                             -45-

          Appellate  review of  the  denial of  a Motion  for

Judgment as  a Matter of Law  is limited.  As  has often been

said,  "we  must  examine  the evidence  in  the  light  most

favorable to  the plaintiff  and determine whether  there are

facts and inferences reasonably  drawn from those facts which

lead  to but one conclusion  that there is a total failure of

evidence to prove the plaintiff's case."  Fact Concerts, Inc.
                                                             

v.  City of  Newport, 626  F.2d 1060,  1064 (1st  Cir. 1980),
                    

vacated on other grounds, 453  U.S. 247, 101 S. Ct. 2748,  69
                        

L. Ed. 2d 616  (1981), quoted in Gonzalez-Marin  v. Equitable
                                                             

Life Assurance  Soc'y of  the United States,  845 F.2d  1140,
                                           

1144 (1st  Cir. 1988);  Mayo v.  Schooner Capital  Corp., 825
                                                        

F.2d  566, 568  (1st  Cir. 1987).    Moreover, "`we  may  not

consider the  credibility of witnesses, resolve  conflicts in

testimony, or evaluate the weight of the evidence.'"   Putnam
                                                             

Resources  v.  Pateman, 958  F.2d  448, 459  (1st  Cir. 1992)
                      

(quoting Wagenmann  v.  Adams, 829  F.2d 196,  200 (1st  Cir.
                             

1987)).

          In  its  Motion for  Judgment as  a Matter  of Law,

Storage Tank argued that it could not be found liable because

(1) the danger to Clausen was obvious and he failed to ensure

his own  safety, and (2)  Storage Tank  had no notice  of the

dangerous  condition.   On  appeal, Storage  Tank raises  two

additional arguments not made in its Motion for Judgment as a

Matter  of  Law.   First,  it contends  that  Clausen's trial

                             -46-

testimony unequivocally established  that he fell on  staging

planks  that   had  been  placed  over   the  existing  ramp.

Consequently, Storage Tank maintains that, because it did not

either  own or  control staging planks     or  receive notice

that staging planks had been placed over the existing ramp   

there was insufficient evidence  upon which a reasonable jury

could  have found  Storage Tank  negligent.   Second, Storage

Tank asserts that "Goudreau . . .  assumed responsibility for

the  safety   of  the  work  area  pursuant  to  the  written

contract."  We decline  to reach the merits of  these freshly

raised arguments, however, because "[a]ppellate review may be

obtained only on the specific ground stated in the motion for

directed verdict."  Wells Real Estate, Inc. v. Greater Lowell
                                                             

Bd.  of  Realtors,  850  F.2d 803,  810  (1st  Cir.)  (citing
                 

Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st
                                         

Cir. 1977)), cert.  denied, 488 U.S. 955, 109 S. Ct. 392, 102
                          

L. Ed. 2d 381 (1988).

          With regard  to whether Clausen  was contributorily

negligent for failing to  observe an obvious danger,  we find

sufficient evidence  upon which a reasonable  jury could find

that he was not.  Clausen was injured on his first day on the

job and on his first trip down the ramp.   He, therefore, had

no prior  personal experience with the  slippery condition of

the ramp.  Moreover, Clausen testified that the one-half-inch

sheet of  ice that caked the  ramp was concealed by  snow and

                             -47-

that  nobody had  told him  prior to  the accident  about the

presence of ice on the ramp.  Similarly unavailing is Storage

Tank's contention that it is entitled to judgment as a matter

of  law because  it  did not  receive  notice of  the  ramp's

dangerous  condition  or  an  opportunity  to  take  remedial

action.  Because there  was evidence at trial from  which the

jury  could reasonably find that  Storage Tank knew or should

have known that ice and snow would accumulate on the ramp and

that Storage  Tank was responsible for taking action to clear

the ramp, the jury "could likewise  find that reasonable care

required that [Storage Tank]  should have taken such action."

Tremblay  v. Donnelly, 103 N.H.  498, 500, 175  A.2d 391, 393
                     

(1961).     We  decline  to  disturb   the  district  court's

conclusion that  Clausen presented evidence sufficient  for a

reasonable jury to find Storage Tank negligent.  

     2.   Denial of  Storage Tank's Motion to  Alter or Amend
                                                             
          Judgment
                  

          Storage  Tank maintains  that  the  district  court

erred in denying its  Motion to Alter or Amend  the Judgment,

which asserted that the jury's verdict was grossly excessive,

not  supported  by  the  facts, and  subject  to  remittitur.

Having  considered  Storage Tank's  argument  and the  record

before  us,   we  cannot  say  that  the  jury's  verdict  of

$1,426,000 was  so exorbitant that the  district court abused

its  discretion   by  denying  Storage  Tank's   request  for

remittitur.  See, e.g.,  American Business Interiors, Inc. v.
                                                          

                             -48-

Haworth, Inc., 798 F.2d  1135, 1146 (8th Cir.  1986) (holding
             

that, because  "the trial  court has heard  the evidence  and

knows the  community's standards,  [a court of  appeals] will

reverse   a  denial   of   remittitur  only   when  in   rare

circumstances [it  is] pressed  to conclude that  the verdict

represents a monstrous or shocking injustice").

          The  judgment of  the district  court is  affirmed.
                                                            

Costs to appellee.
                 

                             -49-
