Cresap v. Pacific Inland Nav. Co.

• Decision Date: 28 April 1970
• Docket Number: No. 119,119
• Citation: 469 P.2d 950,2 Wn.App. 548
• Court: Washington Court of Appeals
• Parties: , 1970 A.M.C. 2018 Joseph E. CRESAP, Appellant, v. PACIFIC INLAND NAVIGATION COMPANY, a Washington corporation, Respondent. (41265) II.

Page 548

2 Wn.App. 548

469 P.2d 950, 1970 A.M.C. 2018

Joseph E. CRESAP, Appellant, v. PACIFIC INLAND NAVIGATION COMPANY, a Washington corporation,

Respondent.

No. 119 (41265) II.

Court of Appeals of Washington, Division 2.

April 28, 1970.

C. Brent Nevin, Vancouver, Pozzi, Wilson & Atchison, Raymond J. Conboy, Portland, Or., for appellant.

Grey, Fredrickson & Heath, Nathan J. Heath, Portland, Or., Blair, Schaefer, Hutchison & Wynne, Vancouver, for respondent.

ARMSTRONG, Chief Judge.

Plaintiff Joseph E. Cresap, a longshoreman, appeals from a judgment based upon a jury verdict for defendant Pacific Inland Navigation Company. Plaintiff brought this action in admiralty to recover damages which he suffered while engaged in unloading a barge operated by defendant shipping company. The complaint alleged unseaworthiness and negligence but at the commencement of the trial plaintiff withdrew the allegation of negligence and relied solely on unseaworthiness.

On February 8, 1965, plaintiff was working for Archer Daniels Midland, a master stevedore, as a hold man in unloading grain from defendant's barge. The duties of a hold man on a grain barge include opening the hatch, going down a ladder into the hold of the barge and operating vacuum hoses of the 'sucker machine'. Six hoses are dropped into the grain which is vacuumed into the hoses by a fan on the dock and deposited into a conveyor system situated on the dock. The barge has a number of hatches on the top deck. The hatches open into holds or interior compartments of the barge. The ladder used by the longshoremen to enter and leave the holds was one of two they customarily used for this purpose when working for the stevedore.

Plaintiff was injured at approximately 2:45 p.m. as he was descending a ladder from the hatch on the top deck to the deck of a hold. The ladder was the means used by the plaintiff and seven other members of his work gang to get in and out of the hold for work operations, lunch and coffee breaks. Plaintiff's gang had just finished their afternoon coffee break. The other members of the gang, except for the hatch tender, were already in the hold when the accident occurred.

The hold into which plaintiff was descending was approximately 10 or 11 feet deep and its deck was made of steel. Plaintiff described the deck where the ladder stood as 'so shiny, steel, slick'. He said the weather was 'a bit damp'. The ladder was made of wood. The bottom of the ladder rested on the steel deck of the hold which had been cleared of cargo except for scattered grain. There were no rubber footings on the ladder. The top of the ladder extended approximately a foot above the hatch. A single length of rope was tied near the top and to one side of the ladder; the rope was tied to a 'bit' welded to the top deck.

In descending the ladder the plaintiff stated that he was facing it. He described his fall in the following manner:

As I started down the ladder, I got to a point about where my head was even with the deck of the barge. That is the top of the deck, and all at once the bottom of the ladder went sideways to the right and the weight of me tried to pull it back; the ladder rolled over and I fell off.

One of plaintiff's fellow workers, Fred A. Ehlke, testified that he did not see plaintiff fall but heard a thump and turned around to see plaintiff lying at the foot of the ladder. He described the ladder as 'sitting on the angled position * * * tied to the top of the hatch opening and the lower part of the ladder was loose on the deck and it had been shifted over where he (plaintiff) was lying'.

Plaintiff received serious head and back injuries as a result of the fall. He was removed from the hold through a side door which entered upon an adjacent hold containing grain, some three feet deep.

Plaintiff makes six assignments of error in seeking the reversal of the judgment and the granting of a new trial. Four primary issues are presented.

In considering the rights and liabilities arising from injury to a longshoreman working on board a ship in navigable waters, we are governed by federal law as to the substantive issues in the case. The rights and liabilities of the parties are within the full reach of the admiralty jurisdiction and measured by the standards of maritime law. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). This rule is applicable even though plaintiff pursues his remedy in a state court. Bishop v. Alaska Steamship Co., 66 Wash.2d 704, 404 P.2d 990 (1965); 2 Am.Jur. Admiralty § 113 (1962).

The first issue presented is whether there was sufficient evidence to support submitting the issue of comparative contributory negligence to the jury. The jury was correctly instructed on the issue. ¹ Plaintiff contends that there was no positive or affirmative evidence of contributory negligence to support this issue. He argues that it was error for the court to instruct the jury on this issue and that his motion to withdraw the issue of contributory negligence from the consideration of the jury should have been granted.

As admitted in defendant's brief, plaintiff was the only witness who actually saw the fall and knew what happened. We repeat his testimony relating to the fall to demonstrate the contention of the defendant that it justifies an inference that he shifted the position of the ladder by throwing his weight to one side:

As I started down the ladder, I got to a point about where my head was even with the deck of the barge. That is the top of the deck, and all at once the bottom of the ladder went sideways to the right And the weight of me tried to pull it back; the ladder rolled over and I fell off.

(Italics ours.)

One inference would be that as the ladder slipped the plaintiff, either by reflex action or as a result of the normal dynamics of the situation, applied his weight against it. Another possible inference would be that as he felt the ladder slipping he consciously applied his weight to the ladder in an attempt to shift its position and prevent it from slipping further or shift it back into its normal position. It is more likely that plaintiff meant 'the weight of me Tended to pull it back'.

We do not believe that defendant has sustained the burden of proving contributory negligence under any possible interpretation of the brief description of the accident related by plaintiff. The ladder 'went sideways to the right' before the shifting of his body weight. There was no substantial evidence, or inference from the evidence, that he did not act as a reasonably careful person under the circumstances.

There is, however, another reason why contributory negligence became an issue in this case. Dr. Hutt, plaintiff's attending physician, saw the plaintiff shortly after the injury at the hospital. He estimated the time at 3 to 4 p.m. The following testimony of Dr. Hutt was presented:

Q. Were you able to obtain any kind of history at that time as to what happened? A. Yes. Q. What was that? A. That he fell from--was sitting on a ladder directing the loading of the hold of a ship and he fell and injured himself.

Fred Ehlke stated that the plaintiff was unconscious when he found him lying on the floor. The hospital records reveal that the history on admittance was stated as 'Fell from a ladder to a steel decking about 7 feet. Was unconscious--when first adm.--does not remember what happened to him--after about 5 min. he can remember starting down the ladder * * *' Dr. Hutt found considerable hemorrhage behind the right eardrum and diagnosed a moderate cerebral concussion. When asked if there was a history of unconsciousness, Dr. Hutt answered 'Yes'.

It will be noted that Dr. Hutt did not specifically state that he received the history of the accident from the plaintiff. An inference could be drawn, however, that he did. The fact that plaintiff was unconscious on arrival at the hospital and the first history given on arrival would affect the weight of Dr. Hutt's testimony.

We find no error in submitting the issue of contributory negligence.

Plaintiff next raises the issue of whether the trial court erred in refusing to take judicial notice of federal regulations dealing with Safety and Health Regulations for Longshoring, 29 C.F.R. § 1504 (1965) (Code of Federal Regulations). Defendant proposed the following instruction, which incorporated the pertinent portions of the regulations for which he sought judicial notice:

You are instructed that there are Federal regulations dealing with 'safety and Health Regulations for Longshoring'. (29 CFR 1504). Those regulations provide in part as follows: '1504.25(A). There shall be at least one safe and accessible ladder for each gang working in a hatch * * *'

(C) Straight ladders of adequate strength and suitably secured against shifting or slipping shall be provided as necessary where fixed hold ladders do not meet the requirements of Paragraph (A) of this section.

Plaintiff contends that the federal regulation was the controlling standard on the question of seaworthiness and should have been judicially noticed. Plaintiff argues that a violation of the safety and health regulations in unseaworthiness per se and cites as supporting and controlling authority Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347 (4th Cir.1968). Venable expands and strengthens the effect of the longshoring safety regulations which were considered in Provenza v. American Export Lines, Inc., 324 F.2d 660, 666 (4th Cir.1963), which states:

The owner's duty (to furnish a seaworthy ship) does not stem from the regulation, but the regulation may be shown just like other evidence to indicate that a certain practice is safe or unsafe. While such evidence is not conclusive, it is relevant.

The Washington Supreme...