Pacific SS Co. v. Holt

• Decision Date: 22 April 1935
• Docket Number: No. 7379.,7379.
• Citation: 77 F.2d 192
• Parties: PACIFIC S. S. CO. v. HOLT.
• Court: U.S. Court of Appeals — Ninth Circuit

77 F.2d 192 (1935)

PACIFIC S. S. CO. v. HOLT.

No. 7379.

Circuit Court of Appeals, Ninth Circuit.

April 22, 1935.

McCamant, Thompson & King, of Portland, Or., for appellant.

E. M. Morton and C. W. Kirk, both of Portland, Or., for appellee.

Before WILBUR and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from a judgment rendered in favor of appellee, plaintiff below, in an action instituted to recover damages for personal injuries, alleged to have been caused by the negligence of appellant steamship company, while appellee was a passenger aboard appellant's vessel, the Admiral Peoples. The jury awarded appellee damages in the sum of $10,000, for which amount judgment was entered. Appellant thereafter moved for a new trial, and, as a condition to its denial, appellee remitted $4,000 of said judgment.

The facts of this case, as they appear in the record, may be stated briefly as follows:

In the late afternoon of July 26, 1932, appellee, a woman then thirty-nine years of age and apparently in good health, boarded appellant's steamship, the Admiral Peoples, at Portland, Or., for a voyage to San Francisco, having paid the necessary fare for the passage between said cities. She was assigned to stateroom 226, in which she had reserved the upper berth for the duration of said voyage. The lower berth was also occupied. This stateroom was not very large. As one enters, the double-deck berths are to the right, with a space approximately 30 inches between the forward wall and the bed. The bed extends to within about 3½ feet of the outer wall or ship side, this space between the foot of the bed and the side of the ship being occupied by a settee. In the corner of the stateroom, opposite the settee and adjacent to the foot of said berth, is a porcelain washstand.

The berths in said stateroom are constructed on iron frames, built one above the other, and run crosswise of the vessel and at right angles to the keel thereof. The upper berth is 5 feet above the floor of the stateroom and 35 inches above the lower berth. There are two arms on the side of the upper berth at either end thereof, extending upwards from the bed rail to a point almost level with the bed when made up; their purpose being to keep the mattress in place when the ship is rolling, as well as to prevent the occupant from falling out of the berth. These arms or rails do not extend to the center portion of the side of the berth, there being an open space there, thus enabling the passenger to get in and out of the berth without having to climb over the iron railing. To further facilitate access to said upper berth, a bar or handhold is affixed to the wall directly opposite from the open space referred to, and about 6 inches above the top of the bed when made up.

The means provided for entering and leaving said upper berth is a movable hanging ladder, which, when in its proper position for use, is suspended or hung from the bed rail of the upper berth in the center space between the two arms heretofore described. However, when the ladder is not in actual use it is not left in this position, but is hung on the same rail on the side of the berth nearest the foot thereof, so as not to interfere with access to the lower berth. This ladder is not very large, having but three steps. The upper end of the frame of the ladder is bent into hooks or grapples, covered with rubber, to hook over the bed rail, and the lower ends are constructed so as to fit into the space or opening inside of the iron frame of the lower berth, between the bed rail and the spring mattress frame thereof, thus preventing the ladder from swinging outward when in use.

Mrs. Holt, appellee herein, testified that when she entered the stateroom the ladder was not at the side of the bed, neither in the center nor near the foot in the position which is its usual or proper place when not in use, but was hanging over the rail at the foot of the bed at a point nearest the washstand. The hooked ends on the top of the ladder were placed between the posts at the foot of the berth in such a fashion that the ladder could not run or slide on the frame of the bed with the fore and aft motion of the vessel. Hanging in such position there was no means of fastening the lower end of the ladder, and the same was free to swing either sideways, or outward toward the side of the vessel, depending upon its motion. Appellee further testified that she believed the ladder, so hanging at the foot of the berth, to be in its proper position for use; that she did not observe that it was movable, and gave little attention to the manner in which it was attached to the rail.

She used the ladder on the evening of the first day to enter the berth, and again on the following morning to leave it. In using the ladder in this position it was necessary for appellee to climb over the steel rail or guard at the foot of said berth. The space remaining above said rail was quite small and cramped for a person to crawl between, there being a distance of but 14¼ inches between the rail and the beams on the ceiling and a slightly larger space between the beams. Although appellee found it very inconvenient and disagreeable to get in and out of bed in this manner, she testified that she "didn't figure on moving the furniture," believing that it had been placed in its proper position for use. Appellee further testified that she did not know that the hand bar heretofore referred to, which was attached to the wall of the stateroom above the upper berth, was to assist one in getting in and out of bed, but thought it was there to hold on to in case of rough weather. Appellee testified that no one instructed her in the use of the ladder, nor did she request any instructions in this respect.

After leaving the stateroom for breakfast on the morning of July 27th, appellee did not return thereto until about 2:30 that afternoon. At this time she disrobed and prepared for bed, having decided to read and rest for the remainder of the afternoon. The record shows that by this time the vessel was on the open ocean, and the testimony of the appellee is to the effect that the ship was rolling a little, and that while she was disrobing she was "pushed this way and that" from the motion of the ship. Having disrobed, appellee entered her berth by ascending the ladder and climbing over the rail at the foot of the bed, the same as she did the night before. After lying in bed for a short time, she proceeded to leave the berth for the purpose of getting an orange. She again climbed over the foot of the bed, got on the ladder, and descended. Before she got to the bottom of the ladder and as she went to extend her foot to the floor, the boat tipped, the ladder went up, the left side of it becoming unhooked, and the appellee was thrown against the washbasin, striking the same with the lower part of her back, resulting in the injuries of which she now complains.

In her complaint appellee made no charge that the facilities provided by defendant were defective or insufficient in any respect, nor did she aver that the ladder itself was a defective appliance, but merely contends that appellant's master, officers, agents, etc., were negligent in failing to instruct her in the proper use of the ladder, and furthermore that the act of appellant's employees in leaving the ladder in the said position at the foot of the berth, in the absence of any instructions as to its proper use, constituted an invitation to appellee to use the same while hanging in said position. Appellee further alleged that she "was without knowledge concerning vessels of any character." The record shows that the only other time that appellee had sailed was in 1919, when she made a trip from San Francisco to Portland, Or.

Appellant advances a large number of errors, alleged to have been committed by the trial court, which are set forth and argued at length in its brief. Many of these assignments relate to the refusal of the trial court to give certain instructions as requested by appellant, some attack as erroneous several of the instructions as given by the court, others assail as error the refusal of the court to grant appellant's motions for nonsuit and directed verdict, and again other assignments of error concern the alleged erroneous admission of certain testimony over objection. Complaint is also made because of the misstatement of certain evidence by the court in its instructions to the jury.

The trial court instructed the jury that the carrier in this case owed the passenger "the highest degree of care, prudence and foresight in the operation of its vessels, consistent with the proper management thereof * * *." Appellant excepted to the foregoing portion of the court's charge, contending that the degree of care imposed upon the defendant carrier, appellant herein, is that which is commonly known and referred to as ordinary care or reasonable care, and that the degree of care imposed upon the appellant by the above charge is applicable to a common carrier by water only with reference to the hull and machinery of the vessel.

After reviewing the decisions and other authorities on this subject, we are of the opinion that the learned trial judge properly instructed the jury as to what degree of care in the circumstances was owing from the carrier to the passenger in this case, and appellant's interpretation of the law in this respect is not supported by the weight of authority. On the contrary, with respect to all special perils of transportation, and all the instrumentalities of transportation, and their proper management, control, placing, and fitness, the strict rule of the highest degree of care obtains.

The discussion of the trial court in the case of Jarowski v. Hamburg-American Packet Co., 182 F. 320, 321, approved by the Circuit Court of Appeals for the Second Circuit on appeal, was as follows: "If a carrier holds himself forth as a carrier of passengers, that...