OPINION
RABINOWITZ, Justice.
This appeal arises out of an accident which occurred on June 28, 1966, near the confluence of the Kenai and Russian Rivers. Appellant Gladys Maxwell alleged that at the time in question she was a passenger for hire aboard a ferry which was maintained and operated by appellee on the Ke-nai River which was “among the navigable waters of the United States of America.” On the basis of these allegations, appellant further asserted the right to pursue her maritime remedies in the lower court.
Thus, under the “saving to suitors” clause of the Judiciary Act of 1789,
the case at bar was tried as a maritime tort before a superior court jury.
On the basis of extraordinarily divergent versions concerning the circumstances leading up to and surrounding appellant’s accident, the jury returned a verdict in favor of appellee. Appellant then moved for a judgment n. o. v. and in the alternative for a new trial. These motions were denied and this appeal followed.
Appellant’s first three specifications of error relate to the question of the sufficiency of the evidence.
This court, in reviewing denials of motions for judgments n. o. v., “views the evidence in its strongest light in favor of the party against whom the motions were made” to determine if fair-minded jurors could differ as to the reasonable inferences of fact that might be drawn from the evidence.
Concerning the granting or refusing of new trials, in Ahlstrom v. Cummings
we said that such decisions rest in the sound discretion of the trial judge and that:
We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice.
The trial court’s denial of a motion for new trial will be upheld where “there was clearly an evidentiary basis for the jury’s decision” and we
cannot say that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.
Guided by these criteria, we hold that fair-minded jurors could have differed on the question of appellee’s negligence. We further hold that such a jury could reason
ably have concluded appellee did not breach any duty of care he owed to appellant. A state court under the “saving to suitors” clause of the Judicial Act of 1789, discussed below, must apply the doctrine of comparative, rather than contributory negligence.
In the case at bar, instructions on comparative negligence were given. Under the evidence, the jury could have concluded that appellee was not at all negligent. The evidence pertaining to almost every facet of the events which preceded appellant’s attempt to disembark from appellee’s ferry, as well as the method employed by appellant to disembark was in sharp conflict.
Resolution of such conflict was within the jury’s province. Based upon our review of the record, we cannot conclude that evidence tending to support the jury’s verdict was so slight and unconvincing as to require corrective intervention on our part. We therefore hold that the trial judge did not abuse his discretion in failing- to grant a new trial on the asserted grounds of insufficiency of evidence. We further hold that the trial court was correct in its refusal to grant appellant’s motion for judgment n. o. v.
In reaching these holdings, we have rejected appellant’s arguments to the effect that the maritime aspects of this negligence suit require us to exercise a much broader' scope of review than normally would be employed in non-maritime negligence actions. As we understand appellant’s argument, this court should review the issue of liability de novo.
The case at bar was tried as a maritime tort. Appellant alleged that maritime law governed. Appellee did not dispute this contention, admitting that the Kenai River was “among the navigable waters of the United States of America.” Article III, section 2 of the United States Constitution extends the “judicial power to all cases of admiralty and maritime jurisdiction.” Congressional implementation of this constitutional provision followed. Section 9 of the Judiciary Act of 1789 provided that:
[T]he district courts * * * shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.
Admiralty jurisdiction has traditionally encompassed tort causes of actions for personal injuries to passengers aboard ships on navigable waters.
Many of these suits are brought under the “saving to suitors” clause in order to obtain jury trials.
Generally, the “saving to suitors” clause means that a suitor asserting an
in per-sonam
admiralty claim may elect to sue in a “common law” state court through an ordinary civil action
In such suits, state courts are required to apply the same substantive law as would be applied had the suit been brought in admiralty in a federal court.
In the case at bar, the parties differ on the question of what standard of appellate review is to be applied in maritime suits tried by juries in state courts under the “saving to suitors” clause. We are of the opinion that questions pertaining to scope of appellate review are procedural in character. In regard to procedural
matters, state courts under the “saving to suitors” proviso are free to apply their own rules.
That is precisely what we have done in the case at bar in reviewing the merits of appellant’s first three specifications of error. Under the “saving to suitors” clause, we are not precluded from applying our own established rules governing the scope of review of jury verdicts in civil actions.
Appellant next specifies as error the following damage instruction which was given by the court. In this charge, the jury was informed that they had been
instructed on the subject of the measure of damages in this action because it is my duty to instruct you as to all the law that may become pertinent in your deliberations. I, of course, do not know whether you will need the instructions on damages, and the fact that they have been given to you must not be considered as intimating any view of my own on the issue of liability or as to which party is entitled to your verdict.
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OPINION
RABINOWITZ, Justice.
This appeal arises out of an accident which occurred on June 28, 1966, near the confluence of the Kenai and Russian Rivers. Appellant Gladys Maxwell alleged that at the time in question she was a passenger for hire aboard a ferry which was maintained and operated by appellee on the Ke-nai River which was “among the navigable waters of the United States of America.” On the basis of these allegations, appellant further asserted the right to pursue her maritime remedies in the lower court.
Thus, under the “saving to suitors” clause of the Judiciary Act of 1789,
the case at bar was tried as a maritime tort before a superior court jury.
On the basis of extraordinarily divergent versions concerning the circumstances leading up to and surrounding appellant’s accident, the jury returned a verdict in favor of appellee. Appellant then moved for a judgment n. o. v. and in the alternative for a new trial. These motions were denied and this appeal followed.
Appellant’s first three specifications of error relate to the question of the sufficiency of the evidence.
This court, in reviewing denials of motions for judgments n. o. v., “views the evidence in its strongest light in favor of the party against whom the motions were made” to determine if fair-minded jurors could differ as to the reasonable inferences of fact that might be drawn from the evidence.
Concerning the granting or refusing of new trials, in Ahlstrom v. Cummings
we said that such decisions rest in the sound discretion of the trial judge and that:
We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice.
The trial court’s denial of a motion for new trial will be upheld where “there was clearly an evidentiary basis for the jury’s decision” and we
cannot say that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.
Guided by these criteria, we hold that fair-minded jurors could have differed on the question of appellee’s negligence. We further hold that such a jury could reason
ably have concluded appellee did not breach any duty of care he owed to appellant. A state court under the “saving to suitors” clause of the Judicial Act of 1789, discussed below, must apply the doctrine of comparative, rather than contributory negligence.
In the case at bar, instructions on comparative negligence were given. Under the evidence, the jury could have concluded that appellee was not at all negligent. The evidence pertaining to almost every facet of the events which preceded appellant’s attempt to disembark from appellee’s ferry, as well as the method employed by appellant to disembark was in sharp conflict.
Resolution of such conflict was within the jury’s province. Based upon our review of the record, we cannot conclude that evidence tending to support the jury’s verdict was so slight and unconvincing as to require corrective intervention on our part. We therefore hold that the trial judge did not abuse his discretion in failing- to grant a new trial on the asserted grounds of insufficiency of evidence. We further hold that the trial court was correct in its refusal to grant appellant’s motion for judgment n. o. v.
In reaching these holdings, we have rejected appellant’s arguments to the effect that the maritime aspects of this negligence suit require us to exercise a much broader' scope of review than normally would be employed in non-maritime negligence actions. As we understand appellant’s argument, this court should review the issue of liability de novo.
The case at bar was tried as a maritime tort. Appellant alleged that maritime law governed. Appellee did not dispute this contention, admitting that the Kenai River was “among the navigable waters of the United States of America.” Article III, section 2 of the United States Constitution extends the “judicial power to all cases of admiralty and maritime jurisdiction.” Congressional implementation of this constitutional provision followed. Section 9 of the Judiciary Act of 1789 provided that:
[T]he district courts * * * shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.
Admiralty jurisdiction has traditionally encompassed tort causes of actions for personal injuries to passengers aboard ships on navigable waters.
Many of these suits are brought under the “saving to suitors” clause in order to obtain jury trials.
Generally, the “saving to suitors” clause means that a suitor asserting an
in per-sonam
admiralty claim may elect to sue in a “common law” state court through an ordinary civil action
In such suits, state courts are required to apply the same substantive law as would be applied had the suit been brought in admiralty in a federal court.
In the case at bar, the parties differ on the question of what standard of appellate review is to be applied in maritime suits tried by juries in state courts under the “saving to suitors” clause. We are of the opinion that questions pertaining to scope of appellate review are procedural in character. In regard to procedural
matters, state courts under the “saving to suitors” proviso are free to apply their own rules.
That is precisely what we have done in the case at bar in reviewing the merits of appellant’s first three specifications of error. Under the “saving to suitors” clause, we are not precluded from applying our own established rules governing the scope of review of jury verdicts in civil actions.
Appellant next specifies as error the following damage instruction which was given by the court. In this charge, the jury was informed that they had been
instructed on the subject of the measure of damages in this action because it is my duty to instruct you as to all the law that may become pertinent in your deliberations. I, of course, do not know whether you will need the instructions on damages, and the fact that they have been given to you must not be considered as intimating any view of my own on the issue of liability or as to which party is entitled to your verdict.
Appellant argues this instruction unduly emphasized that the jury should not reach issues of damages unless convinced of liability; that appellant’s proposed instruction was preferable ;
and that the charge given was repetitious and amounted to an apology by the trial court for giving instructions on damages.
We find no merit in appellant’s contentions. The questioned instruction contained a correct statement of law and was -neither apologetic or repetitious.
During the rebuttal portion of counsel for appellant’s final argument, counsel for appellee stated:
And I also object that he’s already gone about 35 minutes. If I’d known he was going to take this long for rebuttal, I would have taken longer myself. I tried to hurry mine through so we could finish at 12:00.
The trial court then stated: “The objection is noted,” and counsel for appellant resumed his final argument. We can discern no error on the trial judge’s part in regard to this assertion of error, nor can we perceive that any serious prejudice to appellant’s counsel’s effectiveness resulted from this exchange.
During his closing argument, counsel for appellant sought to persuade the jury that Ronnie Slay, who had not been present at the trial but whose deposition had been
very detrimental to appellant’s case, was not a credible witness. In the course of his final argument, the following took place:
MR. LIBBEY (appellant’s counsel): And then he says, why shouldn’t you just — just believe Slay. Well, I’ll tell you one of the reasons is that he was a defendant in this case; still is. If he— if he could come back to Alaska, he could be served today and — and required himself to appear as a defendant in this action.
MR. MOORE (appellee’s counsel); Your Honor, I object to that. Mr. Slay is not a defendant in this case.
THE COURT: I think the objection is well taken. It’s my understanding Mr. — Mr. Slay is dead, isn’t that correct?
MR. MOORE: That’s correct.
MR. LIBBEY: As far as I know, but he’s still a defendant.
THE COURT: And—
MR. MOORE: He’s not a defendant in this action.
MR. LIBBEY: (Indiscernible-interrupted) against him.
THE COURT: Can’t — can’t bring him back to Alaska if he’s dead, sir.
MR. LIBBEY: Well, I apologize to the Court, to Mr. Moore and to the jury, but that’s—
MR. MOORE: He’s not a defendant in this lawsuit and the Court so stated at the time that we initially started this case.
THE COURT: Now wait a minute. He was a defendant. He was never—
MR. MOORE: Yes.
THE COURT: —served and he’s not here.
MR. MOORE: He was never a party to this lawsuit, let’s put it that way, Your Honor. Under the—
THE COURT: He was—
MR. MOORE: —rules he was never a party to this lawsuit.
THE COURT: He — he was never served with papers.
MR. MOORE: That’s correct, and—
THE COURT: Go ahead.
MR. MOORE: —so therefore, he was never a party.
THE COURT: Let’s move on.
MR. LIBBEY: Thank you.
MR. MOORE: So I object to the statement of counsel on it.
THE COURT: Objection (Indiscernible-interrupted) .
MR. MOORE: And I also.object that he’s already gone about 35 minutes. If I’d known he was going to take this long for rebuttal, I would have taken longer myself. I tried to hurry mine through so we could finish at 12:00.
THE COURT: The objection is noted.
MR. LIBBEY: All right. Ladies and Gentlemen, I’m sorry for the remark I made about him not being able to come back. I think there has been sufficient reason to question him without that remark — ■
Appellant argues that the jury “could very well have been shocked” by his counsel’s attack on Slay’s credibility once they learned that Slay was dead, thus preventing counsel from proceeding effectively along these lines. It is unclear what ultimate ruling the trial court made in regard to counsel for appellee’s objection to this attempted attack upon Slay’s credibility. Assuming that the trial court sustained ap-pellee’s objection, we cannot find that this ruling constituted prejudicial error. Concerning credibility, it was permissible for appellant’s counsel to focus upon Slay’s bias at the time his deposition was taken, regardless of whether Slay was dead at the time of trial or was technically a party or defendant. Nothing in the court’s ruling precluded counsel for . appellant from arguing the existence of bias at the time Slay’s deposition was taken. We therefore
conclude that no prejudicial error resulted from the trial court’s ruling.
The trial court, over objection, gave the following instruction:
You are instructed, however, that merely because an accident occurred to plaintiff that this will not, of itself, make the defendant liable.
In the context of this case, appellant contends- that the giving of this “mere accident” instruction confused and misled the jury. This specification of error presents the fourth occasion in which this court has been called upon to review the propriety of giving an unavoidable accident, or mere accident instruction. In three prior cases, Harrison v. Garner;
Mitchell v. Knight,
and Alaska Brick Company v. McCoy,
this court voiced its disapproval of the use of such instructions. In the first of these cases, Harrison v. Garner,
we held it was reversible error to have given instructions on “mere accident” or “unavoidable accident.”
In reaching this conclusion, we said:
The evidence was such that the jury could have found that defendant’s own lack of care created or brought about the situation where the accident became inevitable or unavoidable.
In these circumstances the instructions on unavoidable accident were not warranted. It was reversible error to give those instructions because their probable effect was to confuse and mislead the jury to plaintiffs
prejudice.
Harrison
was followed by Mitchell v. Knight
where we again held that it was error to have given a mere accident instruction,
but further held such error harmless.
Alaska Brick Company v. Mc
Coy
contains our most recent statement on the subject. There we held that the giving of a mere accident instruction was error,
but that the error was harmless because it did not appear that the jury was misled or confused to the prejudice of appellant. In
Alaska Brick,
in regard to mere accident or unavoidable accident instructions, we stated that in
our experience and repeated consideration of authorities on this subject, we are unable to conceive of any situation in the typical negligence action where such an instruction would be appropriate. Such a situation might develop in the future; we do not foreclose that possibility. But as of this time we are convinced that in the ordinary negligence action an instruction on unavoidable accident is unnecessary and has a tendency to complicate the task that the jury has to perform. We express our disapproval of the continued use by the trial courts of such an instruction as a standard instruction in negligence actions.
Despite our admonition to trial courts to eschew unavoidable accident or mere accident instructions, the trial court in the case at bar inexplicably gave the mere accident instruction which is now at issue in this appeal. We adhere to our previous conclusion that an instruction of this type should not be given because of its tendency to confuse and mislead juries in ordinary negligence actions. We therefore hold that the giving of a mere accident instruction in the case at bar was error. We further hold that on the facts of the case at bar this error constituted reversible error, Here the evidence was in stark conflict as to almost every aspect of the liability issue Given as close a question of liability as appears from study of this record, we conclude that the mere accident instruction prejudiced appellant’s substantial right to a fair trial.
Reversed and remanded for a new trial.
NESBETT, C. J., not participating.