Gentry v. States S. S. Co.

• Decision Date: 13 December 1961
• Citation: 229 Or. 233,366 P.2d 880
• Parties: Charles D. GENTRY, Appellant, v. STATES STEAMSHIP COMPANY, Respondent.
• Court: Oregon Supreme Court

Page 880

366 P.2d 880

229 Or. 233

Charles D. GENTRY, Appellant, v. STATES STEAMSHIP COMPANY, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 12, 1961.

Decided Dec. 13, 1961.

Philip A. Levin, Portland, for appellant. On the brief were Pozzi, Levin & Wilson, Portland.

Erskine Wood, Portland, for respondent. On the brief were Wood, Wood, Tatum, Mosser & Brooke, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and BRAND, JJ.

BRAND, Justice.

The plaintiff Gentry, a seaman employee of the defendant, brings this action against the States Steamship Company to recover general damages and loss of wages on account of an alleged injury suffered by him upon the defendant's ship. The case resulted in a verdict and judgment for the defendant, and plaintiff appeals.

The complaint alleges that the case is brought under the Jones Act, 46 U.S.C.A. § 688. It may better be said that the case is under the Maritime Law as supplemented by the Jones Act.

In the complaint plaintiff alleges that the defendant corporation owned and operated the merchant vessel S.S. Montana. The allegation is admitted. Plaintiff alleges that on September 30, 1959 he was employed aboard said vessel as a seaman. Defendant admits that on the day alleged, plaintiff was employed as chief electrician aboard said vessel. All other allegations of the complaint are denied. Those allegations are that on said date plaintiff 'was caused to slip and fall while carrying a box of stores down a ladder.' We quote further:

'III.

'That at the time and place of said occurrence, the above named defendant corporation was negligent, careless and reckless in and said vessel and its apurtenances (sic) were unseaworthy in one or more of the following particulars:

'1. Said vessel was unseaworthy in that there was oil, grease and debris and pickle juice on said ladder, rendering it very slippery and dangerous.'

Specifications of negligence numbered 2 to 6 inclusive allege negligence, as follows:

'2. * * * in having said ladder in a condition where it contained oil, grease and pickle juice rendering it extremely hazardous and slippery.

'3. * * * in failing to properly inspect said work area before requiring this plaintiff to perform his work thereon.

'4. * * * in failing to warn said plaintiff of the slippery and dangerous condition and foreign debris on said ladder.

'5. * * * in failing to clean up said debris * * * before requiring this plaintiff to perform his work thereon.

'6. * * * in failing to provide this plaintiff with a safe place to work * * *.'

The complaint then alleges injury and damages suffered as a proximate result of the negligence of defendant and of the unseaworthiness of the vessel.

On the return from a journey on the Montana, plaintiff was checking stores that were coming aboard for the next voyage. That was done at the storeroom on the shelter deck. He checked stores in the morning. There is also a storeroom for pickles, jams and coffee and nonperishables on the port side at the base of the stairway on the shelter deck, which is below the main deck. Also on the shelter deck is located the electrician's shop.

Plaintiff was the electrician. He testified that at 4:30 in the afternoon he was carrying a box of stores down to the storeroom or shop, and that he had not been down to the shop since morning. He states that the box contained electrical parts weighing 30 or 40 pounds and was about two feet long, a foot-and-a-half deep and a foot wide. As he descended the stairway, he testified, 'I had the box under my left arm and my hand on the handrail going down forward,' the 'normal way' of descending. There are between 12 and 14 steps on the stairway. Plaintiff testified:

'A. I slipped when I was about halfway down the steps and caught my arm, and then my arm hit--my hand hit the stanchion of the post and I fell the rest of the way to the bottom of the ladder.

'Q. In the fall did you break yourself--the fall, I should say, with your right arm at all? A. Yes, sir.

'Q. What was the position of your arm when you got the weight of the body?

'A. It was back up--twisted back up behind me.

* * *

* * *

'A. When I picked myself up and I had something wet over me, so I walked back up and--the ladder was even with me and I checked it. I thought somebody busted a case of pickles or something when they was taking the stores.

'Q. Could you describe what you saw on the step or steps? A. Well, there was a couple of steps that were completely wet and slick. I couldn't say what it was, but just an opinion I had at the time * * *.'

Plaintiff said he had no knowledge as to the condition of the stairway before he descended and doesn't know what the 'stuff' was on the ladder. He does not know that any ship's officer knew of the condition. Plaintiff asserts that the 'stuff was not on the stairway or ladder that morning.' Plaintiff did not report his injury until the following morning. No one witnessed the fall.

One other witness testified that the ladder was 'shiny like something had been spilled on it' when he saw it in the middle of the afternoon, but he had noticed nothing when he used it in the morning. Aside from the evidence that there was nothing on the steps in the morning, there is no evidence as to whether the liquid, if any, had been on the steps for a few minutes or for several hours.

Plaintiff assigns error in that the court refused to give requested instructions numbered 2, 9, 10 and 11. We shall compare portions of the requested instructions with the instructions, if any, given by the court upon the same points:

Assignment of Error No. 1.

Plaintiff's Requested Instruction No. 2: 'Under the Maritime Law, every shipowner or operator owes to every seaman employed aboard a vessel the duty to keep and maintain the ship in a seaworthy condition at all times.'

Instruction Given: 'Now, it is the duty under the law that the owner of a ship or vessel which is used in navigation and for business purposes to keep and maintain his ship in a seaworthy condition at all times. * * *'

The instruction given sufficiently covered the one requested.

Requested Instruction No. 2: 'To be in a seaworthy condition means to be in a condition reasonably suitable and fit to be used for the purpose or use for which provided or intended.'

Instruction Given: 'To be in a seaworthy condition means to be in a condition reasonably suitable and reasonably fit to be used for the purpose for which it is provided--for which it is provided and intended.'

The instruction given is substantially identical to the request.

Requested Instruction No. 2: 'Liability for an unseaworthy condition does not in any way depend upon negligence or fault or blame. That is to say, the shipowner or operator is liable for all injuries and consequent damage proximately caused by an unseaworthy condition existing at any time, even though the owner or the operator may have exercised due care under the circumstances and may have had no notice or knowledge of the unseaworthy condition which proximately caused the damage.'

Instruction Given: 'Now, there's two charges in this case that the plaintiff has laid out, one is unseaworthiness and the other is negligence. Irrespective of whether it was seaworthy or not, there was negligence on the part of the ship, and that you must determine by a preponderance of the evidence as I have already instructed you.'

The court also instructed that 'plaintiff is entitled to recover in this case if he proves that the defendant was negligent or that the vessel was unseaworthy.' The court also instructed on the duty of 'providing at all times to the plaintiff a reasonably safe working place for the plaintiff during his service on the vessel as a member of the crew.' But this instruction confused the issue of negligence with the issue of seaworthiness. The court instructed that the test was that of a

'person * * * of ordinary prudence and care, if it was not a safe place it would be negligence on the part of the defendant, and if it was an unseaworthy condition it would be negligence on the part of the defendant also. * * *'

The court further elucidated by instructing that defendant had a

'duty to warn the plaintiff of any potentially dangerous situation which the defendant corporation knew or with reasonable care and prudence should have known could have constituted a hazard * * *.'

Thus the court clearly tied the instruction to negligence, not seaworthiness. Comparison of the instruction requested with those given demonstrates that the latter did not with clarity cover the substance of the former. The instruction requested and last quoted supra is in substantial accord with the recent pronouncements of the United States Supreme Court, later to be discussed.

Requested Instruction No. 2: 'Furthermore, the duty to keep and maintain the ship in a seaworthy condition is not any less with respect to an unseaworthy condition which may be only temporary, or which may have been in existence only a very short period of time. If the condition of the ship in this case was unseaworthy, as I have defined that term for you, the shipowner or operator is liable for all injuries and consequent damage proximately caused by such condition, regardless of the length of time such condition may have existed.'

Instruction Given: 'In maritime law the equipment on a ship is said to be seaworthy when it is reasonably fit for the purposes for which it is intended to be used. It does not have to be perfect. It may have some minor defects or some temporary condition, but if in spite of such defects or such conditions it is still reasonably fit for the use intended it is seaworthy.'

Reference to the instruction given discloses only a single comment on 'some temporary condition.' It certainly did not cover the rule as asserted in the requested instruction. The requested instruction raises a serious and highly debatable question. As indicated, the alleged...