Jacobs v. Tidewater Barge Lines, Inc.

Decision Date31 March 1977
Citation277 Or. 809,562 P.2d 545
PartiesTex R. JACOBS, Appellant, v. TIDEWATER BARGE LINES, INC., Respondent.
CourtOregon Supreme Court

[277 Or. 810-A] Charles Robinowitz, Portland, argued the cause for appellant. With him on the briefs was Newton R. Brown, Wilmington, Cal.

Paul N. Daigle and Rigeway K. Foley, Jr., of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, argued the cause and filed a brief for respondent.


LENT, Justice.

Plaintiff, a longshoreman, brought a third party action against the owner of a vessel for damages for personal injuries allegedly resulting from negligence. 1 Judgment was entered for plaintiff upon a jury verdict. Defendant's motion for judgment notwithstanding the verdict was allowed, and plaintiff appeals, assigning as sole error the allowance of the motion.

[1,2] On that assignment of error, unless we can affirmatively say there is no evidence to support the verdict, it must be reinstated. 2 Our inquiry on review, therefore, is to search the record to ascertain whether it contains evidence which supports the verdict. In performing our function, we do not weigh the evidence. We are required to accept as being true all evidence and inferences therefrom in the light most favorable to the party who prevailed before the jury. This necessitates resolving any conflicts in the evidence in favor of that party. 3

Plaintiff was an experienced longshoreman employed by Continental Grain Co. as a millwright. Continental employed defendant Tidewater Barge to carry a load of wheat from Pasco, Washington, to its facilities at Longview, Washington.

On August 11, 1973, Barge 44 arrived at Longview for unloading. Barge 44 is one of eight newer barges which are 'automatic unloading' vessels. They were designed to eliminate the need to enter the hold except for repair or cleaning purposes. This particular barge had two adjoining holds separated by a bulkhead. At the bottom of the bulkhead is an opening between the two compartments with a gate which can be raised or lowered by a cable. The bottom of the hold is vee-shaped with a covered auger or screw running along at the lowest depth. There is space between the gate and the screw into which a 'grain leg' is lowered for unloading grain. A grain leg' is a series of buckets attached to a continuous conveyor belt with two pulleys. The buckets scoop out a load, transport it to the top, dump it, and return for another load.

To protect the screw from damage when the leg is misplaced, Tidewater added a 'thwartship brace' to the vessel. The brace is a pipe connecting the two sides of the vee-shaped bottom, and it is located above the point where the screw ends. In other less modern barges in Tidewater's fleet, the thwartship brace is located at a point higher in the hold. On Barge 44 and the other barges in that series, the brace is positioned about four feet from the bottom of the hold at about the level of the top of the bulkhead opening which is used as a grain passage between the two compartments.

On the day of the injury, plaintiff was asked by his supervisor to repair the broken gate cable on Barge 44, because it was necessary to raise the gate in order to unload the other compartment. Plaintiff and a helper descended the ladder into the hold. Because the grain leg was still in place (and because it was positioned between the ladder and access to the cable), plaintiff walked around the leg. The grain leg was too close to the bulkhead to permit him to go between the leg and the bulkhead to reach the other side. At this time the level of grain was even with the top of the opening (where the cable was attached). The thwartship brace was submerged a few inches under the grain. In passing around the leg, plaintiff's heel slipped on the brace; he fell backward and injured his back.

Plaintiff's theory of negligence, as submitted to the jury, was that defendant was negligent in failing to warn plaintiff of the hidden danger occasioned by the unique placement of the brace and that defendant was negligent in maintaining the gate cable, which created an extra-hazardous situation by requiring a potential repairer to descend into unfamiliar and dangerous territory.

There is no dispute between the parties as to the duty aspect of this case. 4 Both litigants agreed that defendant owed a general duty to the plaintiff to exercise reasonable care to protect the plaintiff from latent or concealed dangers of defendant's making. Defendant, however, contends that it is beyond dispute that injury to this plaintiff in particular and in this particular manner was unforeseeable and, therefore, the jury verdict cannot stand.

[3,4] Our review of the record discloses evidence on the foreseeability issue sufficient to create a jury question. Plaintiff and others testified that it was a longstanding custom of Continental to perform minor repairs on barges and that this repair, which involved clamping the cable and took around 10 to 15 minutes, was minor. Testimony was introduced that Tidewater knew of this custom, as it had been billed for minor repairs in the past.

Defendant objects that it never knew of repairs made in the hold by Continental employees (as opposed to electrical repairs made on deck). It admits that in the past clean-up crews from Continental have labored in the hold to dislodge wet grain, a situation involving risks similar to the instant predicament. It may be inferred, therefore, that Tidewater knew of a potential class of persons who would be in the hold in a situation where the brace could be covered by grain. Even though plaintiff was not a member of this class, it is significant that Tidewater could foresee some persons within the zone of this particular danger.

More importantly, however, plaintiff testified that this particular cable had been broken and clamped three or four times previously. Defendant's maintenance supervisor testified that cable breakage was a rare phenomenon. According to this witness, only three cables on six or seven barges with this design had been repaired in the past few years, and Tidewater always replaced broken cables with new cable rather than splicing or clamping the break. Assuming that the particular cable on Barge 44 had been severed three or four times recently without replacement, the...

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45 cases
  • Ragnone v. Portland School Dist. No. 1J
    • United States
    • Oregon Supreme Court
    • September 22, 1981
    ...it could affirmatively say that there was no evidence to support the verdict. Or.Const. Art. VII (Amend.), § 3; Jacobs v. Tidewater Barge Lines, 277 Or. 809, 562 P.2d 545 (1977). The Court of Appeals held, viewing the evidence in the light most favorable to the plaintiff, that she was a lic......
  • Brennen v. City of Eugene
    • United States
    • Oregon Supreme Court
    • February 27, 1979
    ...are considered in determining the scope of defendant's duty and whether that duty was breached. See Jacobs v. Tidewater Barge Lines, 277 Or. 809, 562 P.2d 545 (1977); Stewart v. Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783 (1970); Sworden v. Gross, 243 Or. 83, 409 P.2d 897 (1966); Hills......
  • Whinston v. Kaiser Foundation Hosp.
    • United States
    • Oregon Supreme Court
    • May 3, 1990
    ...most favorable to the party in whose favor the verdict was returned. 277 Or. at 643, 561 P.2d 1016; see also Jacobs v. Tidewater Barge Lines, 277 Or. 809, 811, 562 P.2d 545 (1977).9 Article VII (Amended), section 3, of the Oregon Constitution provides, in part:" * * * If the supreme court s......
  • Bennett v. Farmers Ins. Co. of Oregon
    • United States
    • Oregon Court of Appeals
    • September 17, 1997
    ...this appeal comes to us on JNOVs, we do not reexamine the jury's findings, nor do we reweigh the evidence. Jacobs v. Tidewater Barge Lines, 277 Or. 809, 811, 562 P.2d 545 (1977). All evidence, and every reasonable inference from the evidence, must be viewed in the light most favorable to pl......
  • Request a trial to view additional results
2 books & journal articles
  • § 40.4 Judgment Notwithstanding the Verdict
    • United States
    • Oregon Civil Pleading and Litigation (OSBar) Chapter 40 Posttrial Matters
    • Invalid date
    ...therefrom in the light most favorable to the party who prevailed before the jury." Jacobs v. Tidewater Barge Lines, Inc., 277 Or 809, 811, 562 P2d 545 (1977). See also Austin v. Sisters of Charity of Providence, 256 Or 179, 183, 470 P2d 939 (1970); Vukanovich v. Kine, 268 Or App 623, 633, 3......
  • § 2.4 Identifying Issues For Appeal
    • United States
    • Appeal and Review: Beyond the Basics (OSBar)
    • Invalid date
    ...facts in the light most favorable to the jury's verdict or factfinder's decision. Jacobs v. Tidewater Barge Lines, Inc., 277 Or 809, 811, 562 P2d 545 (1977). For the appellant, that means that the court is going to view the facts from the opposing party's perspective. Laying out the facts f......

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