Carlson v. Wheeler-Hallock Co.

• Citation: 171 Or. 349,137 P.2d 1001
• Parties: CARLSON <I>v.</I> WHEELER-HALLOCK CO.
• Decision Date: 18 May 1943
• Court: Supreme Court of Oregon

171 Or. 349

137 P.2d 1001

CARLSON

v. WHEELER-HALLOCK CO.

Supreme Court of Oregon.

Argued March 23, 1943.

Reversed May 18, 1943.

Seamen

1. A seaman's action under the Jones act against charterer for injuries sustained when wheel of a hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel of truck was founded upon negligence of which seaman had burden of proof.

Seamen

2. As respects charterer's liability for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel, the standard of care imposed upon charterer was that of reasonable or ordinary care, having regard to the circumstances and although the measure of charterer's duty did not vary, the degree of care was adjusted to the risk involved.

Seamen

3. In determining whether seamen produced sufficient evidence of charterer's negligence within allegations of complaint against charterer for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel, "sufficient evidence" meant "substantial evidence."

Negligence

4. Unless the circumstances warrant application of res ipsa loquitor rule, mere happening of an accident is not proof or evidence of negligence.

Seamen

5. Where wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel while storing paper in ship's hold, that seaman and his fellows had inspected the boards before they were placed in position and that the second mate had inspected a "sliding floor" composed of the boards after it was laid did not relieve charterer of liability for seaman's injuries where seaman did not have duty to inspect boards, and mate having such duty had made no more than the most casual inspection.

Seamen

6. In action against charterer for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel to assist

in storing paper in ship's hold, where it was obvious that charterer did not know that skid board was defective, evidence was insufficient to take case to jury on issue that charterer was negligent in failing to warn seaman of the dangers attendant upon working with defective equipment.

Negligence

7. When the thing is shown to be under the exclusive management of defendants or its servants, and the accident is such as in the ordinary course of things does not happen if those who have management use proper care, it affords reasonable evidence, in absence of explanation by defendant that the accident arose from want of care.

Evidence

8. The Supreme Court takes judicial notice that the storage of cargo is a technical operation, supervision of which is not usually delegated to common sailors.

Seamen

9. As respects charterer's liability for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel to assist in storing paper in ship's hold, seaman had no duty to inspect the boards as they were laid down.

Evidence

10. It is only when a party has introduced evidence upon an issue raised by his own evidence that a presumption arises against him for failure to produce evidence peculiarly within his knowledge and possession.

Seamen

11. In action for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel to assist in storing paper in ship's hold, where defendant charterer offered no evidence on issue whether skid board was defective, that charterer did not produce broken board at trial did not justify inference that board was defective.

Seamen

12. The law looks upon the seaman with especial favor and in actions brought by him against his employer to recover for personal injuries, has taken away the defense of negligence of fellow servant, and had greatly restricted the defenses of assumption of risk and contributory negligence.

Seamen

13. The law imposes upon the shipowner the absolute and nondelegable duty of furnishing a seaworthy ship and reasonably safe equipment and appliances, and if a seaman suffers injury through the owner's failure to perform such duty the owner is liable to him in damages.

Seamen

14. In action against charterer for injuries sustained when wheel of hand truck broke through a skid board throwing a roll of paper from truck upon seaman who was blocking wheel of truck, seaman made a prima facie case sufficient to invoke "res ipsa loquitor" rule on issues of charterer's negligence and seaman was not required to prove specifically any particular specification of negligence.

                  See 38 Am. Jur. 983
                  31 C.J.S., Evidence, § 29
                

Before BAILEY, Chief Justice, and KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

MacCORMAC SNOW, Judge pro tempore.

Action under the Jones Act by August G. Carlson against Wheeler-Hallock Company, for injuries sustained when a roll of paper was thrown upon plaintiff. From a judgment for defendant after motion for judgment notwithstanding verdict for plaintiff was sustained and motions for directed verdict for defendant were overruled, plaintiff appeals.

REVERSED.

B.A. Green, of Portland (Green & Landye, of Portland, on the brief) for appellant.

Erskine Wood, of Portland (Wood, Matthiessen & Wood, of Portland, on the brief) for respondent.

HAY, J.

The plaintiff and appellant, August G. Carlson, brought this action against the defendant-respondent under the Merchant Marine Act of 1920 (46 U.S.C.A., section 688), commonly called the Jones Act.

On April 27, 1940, the Steamship Samoa, under charter to defendant, was being loaded with cargo at the Port of Portland. Part of the cargo consisted of large rolls of paper, weighing approximately 1800 pounds each. These rolls were cylindrical in shape, and measured approximately 7 1/2 feet in length by 3 1/2 feet in diameter. The plaintiff, who was a member of the ship's crew, was an able-bodied and experienced seaman. At the time of his accident he was engaged in assisting in stowing rolls of paper in one of the ship's holds. The rolls were stowed standing on end, and, because of their shape, interstices or "holes" necessarily were left between them. After one tier of rolls had been stowed, a temporary floor of skid-boards was placed over it, and upon this temporary floor another tier of rolls was stowed. The skid-boards were approximately square, and were about 4 1/2 feet wide. They were built up of two 3/4-inch boards, superimposed upon each other, "cross-grained", and nailed together to form laminated boards approximately 1 1/2 inches thick. The rolls were lowered into the hold in pairs and thence, by means of an ordinary two-wheeled hand truck, each roll was wheeled to the place where it was to be stowed. The truck was wheeled over the temporary floor of skid-boards. Because of the great weight of the rolls, four men were needed to operate the truck. One man wheeled it, one man on either side steadied the load, one man stood by to put wooden blocks behind the wheels, in order to hold the truck in position while the load was being tipped.

A skid-board had been placed in such position that one of its corners lay immediately over an interstice between rolls of paper. Plaintiff and his fellows brought the truck to a standstill with one of its wheels resting upon the corner in question, preparatory to unloading a roll of paper therefrom. Plaintiff was engaged in blocking the wheel, when suddenly, without warning, it broke through the skid-board and dropped some five inches, tipping the truck sidewise and throwing the roll of paper upon him, whereby he was knocked down and suffered injuries to his left foot and ankle.

Plaintiff charged the defendant with negligence, (1) in furnishing him with defective and unsafe equipment, in that the temporary flooring, (which he calls a "sliding floor"), was worn through constant use, and the boards were weakened to the extent that it would not sustain the weight of said truck and paper; (2) in not inspecting the "sliding floor", and in placing skid-boards of insufficient strength to hold the weight of the truck and paper over the holes between the rolls; (3) in not warning plaintiff of the dangers attendant upon working with said defective equipment; and (4) in causing and ordering plaintiff to work in an unsafe place, as aforesaid, when defendant knew, or by reasonable diligence could have known, that the condition of the floor was "unseaworthy".

The defendant made general denial of the allegations of negligence attributed to it, and alleged affirmatively that plaintiff was employed by it as an experienced seaman, competent to perform the duties assigned to him, and to exercise care for the safety of himself and others with whom he worked, and that, in accepting employment with the defendant, plaintiff assumed all the usual and ordinary risks of his calling. The defendant alleged further that, if plaintiff sustained an accident and injuries as alleged, they were (1) the result of the usual and ordinary risks of his occupation as a seaman, which he assumed; and (2) caused by his own sole negligence in not exercising reasonable care and caution for his own safety, in allowing the roll to fall, in not keeping himself in a position of safety in case it should fall, and in not getting out of its way and avoiding it when it fell.

On the trial, after plaintiff had rested his case, defendant moved for a directed verdict in its favor on the ground that there was no substantial evidence of any negligence on its part, as pleaded in the complaint. Plaintiff thereupon requested and received permission further to amend his amended complaint, by amplifying his specifications of negligence, following which the court permit...