HAYS, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Southern District of New York, dismissing
Plaintiff was employed as a messman aboard the defendant's ship. Part of his job was to prepare the evening meal for the crew. At about 4 P.M. on January 18, 1971, the plaintiff began to dish out salad from a large serving bowl into several individual bowls. The weather was rough and he eventually fell and slid across the room, with the impact causing knee injuries.
There are conflicts in the testimony as to the cause of plaintiff's fall, the condition of the deck at the time of the accident, and the role of plaintiff's superior officers, the chief steward and the cook, who were seated in the room when the accident occurred. Plaintiff testified that his fall was caused by a heavy roll of the ship and a rush of water under his feet. He claimed that the deck was wet because water generally overflowed from a nearby drinking fountain in rough weather. Plaintiff also testified that although the chief steward and the cook were present, neither told him to stop working until the rough weather subsided.
The defense introduced testimony that the deck was dry at the time of the accident. It also introduced a written statement, signed by both the plaintiff and his brother, to the effect that the deck was "dry and clean" when he fell. According to the statement the subscribers to the statement had read the statement before signing it. The investigator who took the statement also testified that he had read the statement to Koa and his brother. Koa denied that the statement had been read to him. Finally, the defense introduced evidence that the chief steward and cook had indeed warned the plaintiff to stop working on account of the rough weather.
After unsuccessfully objecting to the introduction of the written statement, counsel for the plaintiff attacked its accuracy on the ground that the plaintiff and his brother, both of Chinese extraction, could not read and had a great deal of difficulty understanding English. Counsel argued, in effect, that they had been overreached by John A. Anduiza, the investigator who took the statement on behalf of the defendant when the vessel arrived in New York.
At the conclusion of the plaintiff's case, the court dismissed the negligence count of the complaint on the ground that even if the deck was wet, plaintiff had failed to establish that the defendant, or its employees, had notice of the dangerous condition. After the defendant had presented its case, the court submitted the remaining count of unseaworthiness to the jury, which found for the defendant.
Appellant claims that in his charge to the jury, the district judge exceeded the bounds of fair comment on the evidence.
A major issue in the trial was the accuracy of the statement signed by the appellant. If the jury believed that the appellant had indeed told Anduiza that the deck was dry, not only would it be likely to reject his trial testimony that the deck was wet and therefore unseaworthy but it might also dismiss his entire testimony as unreliable. The jury's attitude toward Anduiza and his role in the case was certainly crucial to its determination of this issue. In his summation, counsel for the appellant argued, based on evidence in the record, that Anduiza had been working as an investigator for the company and that his purpose was not to protect the seaman. Based on this and the evidence of appellant's problems with English, counsel asked the jury to conclude that appellant
In his charge to the jury, the district judge made several comments which could only have left the impression that the judge viewed appellant's arguments as implausible. He stated flatly that Anduiza was "not obliged to go up there to protect the defendant."
The court pointed out that Anduiza had afterwards become a lawyer, and suggested that it was unlikely that he would have done anything unethical at the time of the investigation to prejudice his future career.
In the federal courts, the trial judge in a jury trial does not act simply as a moderator. He is expected to summarize the evidence for the jury, and to comment on it, if he chooses. However, there are limitations to the judge's right to comment. See Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). The judge is not to impose his own opinions on the jury, nor is he to assume the role of an advocate by making arguments to the jury. United States v. Tourine, 428 F.2d 865, 869 (2d Cir.1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 581, 27 L.Ed.2d 631 (1971); United States v. Sowards, 339 F.2d 401, 403 (10th Cir.1964); Buchanan v. United States, 244 F.2d 916, 920 (6th Cir.1957); 9 C.A. Wright and A.R. Miller, Federal Practice and Procedure: Civil, § 2557 (1971). He is certainly not permitted to add to the facts, or to present his own theories when they are not strongly grounded in the evidence. Quercia v. United States, supra, 289 U.S. at 470, 53 S.Ct. 698; United States v. Cisneros, 491 F.2d 1068, 1074-75 (5th Cir.1974).
The appellee argues that the trial judge's charge was fair because he stated several times that the jury and not the court must resolve questions of credibility. It is well-settled, however, that such an instruction is not necessarily sufficient to cure an improper charge. Querica v. United States, supra, 289 U.S. at 472, 53 S.Ct. 698; United States v. Tourine, supra, 428 F.2d at 870; Gordon Mailloux Enterprises, Inc. v. Firemen's Ins. Co., 366 F.2d 740, 742-43 & n.3 (9th Cir.1966). Here the district judge made it quite clear that in his opinion Anduiza was telling the truth about the statement. He argued that point to the jury in several different forms. He also reached outside the record for facts to support the credibility of other defense witnesses. The instruction that it was for the jury to resolve questions of credibility could not undo the prejudicial effect of such comments.
Appellant also argues that the judgment should be reversed and a new trial ordered because the district judge erred in dismissing his negligence claim. He claims that even if there was insufficient evidence to show that his superiors had notice of water on the deck, there was ample evidence to show that they had notice of the rough weather. Therefore, if the jury believed the plaintiff that there had been no warning from them, it could have found negligence regardless of whether there was water on the deck.
We agree that there was sufficient evidence to go to the jury on the issue of negligence. The plaintiff presented two theories of negligence, one based on water on the deck and the other based on the rough weather. Even if there was insufficient evidence to support the first theory, there was clearly ample evidence to support the second. On the evidence presented, the plaintiff was entitled to a jury finding on the issue of negligence.
Reversed and remanded.