Koivunen v. States Line, 20941.
| Decision Date | 26 January 1967 |
| Docket Number | No. 20941.,20941. |
| Citation | 371 F.2d 781 |
| Parties | Ilmar KOIVUNEN, Appellant, v. STATES LINE, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nels Peterson, Gerald H. Robinson, Portland, Or., for appellant.
Nathan J. Heath, of Gray, Fredrickson & Heath, Portland, Or., for appellee.
Before MADDEN, Judge of the United States Court of Claims, and BARNES and ELY, Circuit Judges.
The appellant was the plaintiff below. He instituted his suit in an Oregon state court, seeking damages for personal injuries which he suffered while working as a longshoreman aboard a vessel owned by appellee. The appellee removed the suit to the District Court, which assumed jurisdiction under 28 U.S.C. §§ 1332 and 1441. In a jury trial, a verdict of $1000 was rendered in appellant's favor, and judgment was entered accordingly. Appellant moved that the trial judge grant a new trial unconditionally, or that he grant a new trial unless appellee would accept the imposition of such additional amount of damages which the judge might fix. The motion was denied, and this appeal followed. Our jurisdiction rests upon 28 U.S.C. § 1291.
The appeal is based upon only one contention, namely, that the evidence was insufficient to support instruction to the jury that if appellee's responsibility should be determined, appellant's damages should be reduced according to the degree of contribution of his own negligence, if any, to the accident. Put another way, the appellant insists that he was free of contributory negligence and that we should hold, as a matter of law, that the evidence was inadequate to support a contrary determination.
Review of the record convinces us that the judgment must be affirmed.
The accident which produced the injury occurred in the number two hatch of the vessel, which, at the time, was docked in Coos Bay, Oregon. The cargo, bales of pulp, had been stored at Longview, Washington. The bales had been stacked to a height of seven or eight feet fore and aft in the hatch and the wings. The center area directly beneath the hatch was left open. The bales were shored by vertical boards against them. The vertical boards were supported by bracing, "toms" extending from the top of the shoring to points where they were nailed to the deck.
After departing Longview and while crossing the Columbia River Bar en route to Coos Bay, the vessel encountered heavy winds and pitched and rolled moderately in rough seas. She had been tied at the Coos Bay dock for three or four days before the appellant was injured.
On the day of the accident, appellant, with three other longshoremen, had worked in the number two hatch. One of the four was not produced as a witness. The others testified that they had been instructed to remove the "toms" and shoring and to begin work in the aft section. The appellant and his son, one of the four workers, testified that they worked in the aft end of the hatch only and that they had there taken out the "toms" and commenced to remove the shoring. The appellant testified that he stopped work to remove a thermos bottle to a safe place at the forward end of the hatch. He related that as he commenced to return to the aft end, he stopped to pick up a peavey and the forward shoring collapsed upon him. The appellant, his son, and a third workman testified that they had not loosened the "toms" in the forward part of the hatch or even touched them.
Liability of the appellee was fixed upon the jury's apparent acceptance of his claim that there was negligence in the manner in which the cargo was stowed, shored, or braced. The defense of contributory negligence was based upon the plea, which we generally state, that appellant's own negligence contributed as a proximate cause of the accident and resulting injuries. The verdict was a general one; consequently, one may only assume that the...
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