Shields v. W.R. Grace & Co.

• Decision Date: 18 February 1919
• Citation: 179 P. 265,91 Or. 187
• Parties: SHIELDS v. W. R. GRACE & CO.
• Court: Oregon Supreme Court

179 P. 265

91 Or. 187

SHIELDS v. W. R. GRACE & CO.

Supreme Court of Oregon

February 18, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by J. A. Shields against W. R. Grace & Co., a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injuries sustained by plaintiff while employed in loading grain in the hold of defendant's steamship, Colusa, at Portland, Or. The complaint charged substantially the following negligent acts on the part of the defendant:

"(1) In not keeping the ship equipped with proper, safe, and secure apparatus for handling grain.

"(2) In allowing the sack of wheat to fall from the sliding board to the bottom of the hold.

"(3) In failing to keep a net or apparatus to prevent sacks from falling into the hold of the ship.

"(4) In failing to provide proper and safe means for raising the chute when it was necessary to raise the receiving table.

"(5) In failing to provide a safe and proper means of raising the receiving table.

"(6) In sending the sacks of wheat from the conveyor down the tongue chute with too great rapidity and force.

(7) In failing to prevent more than one sack from coming from the conveyor and down the chute at a time.

"(8) In not furnishing a proper and safe conveyor.

"(9) In not furnishing a safe and proper place for plaintiff to work.

"(10) In negligently operating the chute from the head of the conveyor to the table."

Defendant answered, and, after denying negligence, set up the following affirmative defenses:

"(1) Assumption of risk, alleging that plaintiff's injury was due to one of the ordinary risks incident to plaintiff's employment.

"(2) Negligence of fellow servant, alleging that any negligence other than plaintiff's causing plaintiff's injury was the negligence of a fellow servant of the plaintiff.

"(3) Contributory negligence, alleging that plaintiff failed to use proper care in the manner in which he did his work that he failed to give any signal prior to raising the receiving table; and that he failed to observe whether or not wheat was being sent down the chutes when raising the table."

All affirmative defenses were denied in the reply.

Plaintiff's testimony tended to show: That the ship is a large vessel probably 300 to 400 feet long, on which are two decks, the upper or main deck and a lower deck. Surrounding the upper or main deck is the ship's rail, which stands several feet above the main deck. The main deck is about 12 feet above the lower deck, and the lower deck is about 12 feet from the hold where the wheat was being packed for shipment. The hold of the ship consists of practically all of the ship below the lower deck and is divided into compartments, entrance into which is gained by way of hatchways, or openings, extending downward through the different decks. Around the hatchways or openings are fails, built up solidly 2 or 3 feet, and are designated "coamings." The hatches are numbered and plaintiff was working in hatch No. 3. The hatchways for this hatch are about 16 feet in width crosswise of the ship by about 18 feet lengthwise of the ship. That the docks where the wheat was stored ready to be taken on board the ship are double docks, consisting of two floors known as the "upper dock" and the "lower dock." These docks are approximately 15 to 20 feet apart, one above the other, and the ship was so situated that the upper dock was some distance above the rail of the ship, and the lower dock was several feet below the rail. That wheat was taken on board ship from both these docks, from the upper dock by a chute running from the edge of the upper dock down to the rail of the ship, from there to the hatch coaming by a rail chute, and by means of continued chutes down into the hold from the lower dock by a conveyor, running from the lower dock to the rail of the ship, and from there by other chutes to the hatch coaming on the main deck and into the hold similar to those in use from the upper deck. The conveyor consisted of an endless rubber belt, on which were slats or cleats crosswise of the same, at regular intervals, operated by an electric motor. Sacks of wheat were placed on the conveyor and elevated to the rail of the ship where they dropped into the rail chute leading to the hatch. Wheat coming from the upper and lower docks was sent down separate sets of chutes, and each set of chutes was served and tended by a separate and distinct gang of workmen. That each set of chutes consisted of a rail chute running from the rail of the ship to the coaming of the hatch on the main deck, one to the forward coaming of the hatch opening, and one to the rear where there was a sliding board, and two chutes from the sliding board to receiving tables in the bottom of the hold. The rail chute was in two parts, the first part of which, about 8 or 10 feet in length, was placed at a steeper pitch than the balance of the chute in order to give the sacks greater speed. This first part of the rail chute was sometimes called the "tongue chute." The chutes employed were about 16 or 18 inches wide with 2x4's along the sides for rails, making shallow chutes or troughs in which the sacks slid. The sliding board is a plain smooth plank, one being located at each end of the hatchway, immediately under the chutes, upon which the sacks of wheat land and are directed or turned by an operator into one or the other of the pair of chutes located at his end of the hatch, landing onto the receiving table in the hold of the vessel. The receiving tables consisted of planks about 16 or 18 inches in width and from 10 to 12 feet in length, placed upon sacks of wheat piled up under the hatch to the height of the shoulder to avoid the necessity of picking up or raising the sacks when carrying them to the different parts of the hold. That one set of chutes ran from the forward hatch coaming on the main deck downward into the after part of the hatch to the hold, and the other set ran from the after hatch coaming downward into the forward part of the hatch to the hold. The lower or double chutes of the two sets crossed at a point about on a level with the "between decks," one chute leading forward and one leading aft to the hold of the ship. That the work was prosecuted under the superintendence of P. D. Hall, who was known as the "supercargo," and had full charge of the ship at the time of loading the wheat, and all people on the ship were subject to his command and direction. He was the defendant's representative, and had full charge of its affairs in the loading of the ship. Under him, as an assistant and known as a "boss stevedore," was Charles Warner, who had four foreman working under him, including38 plaintiff's foreman. Under order from Hall, Mr. Warner hired his foremen, who, in turn, hired the men of their particular gangs. Each foreman had control of his particular gang and was invested with power to hire and discharge the men under him. The men performed their work under orders and directions from their respective foremen. Each gang worked independently of the other gang, and neither the men nor the foreman of one gang had any authority over the men or foreman of the other gang. That Chris Landsberg and Charles Mackstrom were the foremen in charge of the two gangs working in hatch No. 3, where the plaintiff was employed. Mr. Landsberg's gang, including plaintiff, was handling the wheat that came from the upper deck, and their equipment was rigged "from fore to aft" so that plaintiff and his gang were packing the sacks of wheat in the after part of the hold, and the other gang, working under Mackstrom, packed the forward part of the hold and handled the wheat from the lower dock, which was taken on board by means of the conveyor. That respondent's duties consisted chiefly in carrying and packing the sacks of wheat in the hold. The sacks weighed from 130 to 150 pounds each, and were packed in layers over the entire hold. Thus, after several layers of sacks had been packed, it became necessary to raise the receiving tables in order to keep them at shoulder height. This was done by holding up the planks which formed the table and piling under them wheat bags until proper height, and then replacing the plank. This became necessary several times as the work progressed. That the gang in which plaintiff was working had its chutes placed and was at work packing wheat from 15 minutes to half an hour before the other gang had its equipment installed. The chutes and equipment installed by the other gang were placed in such a manner as to leave open spaces from the main deck to the bottom of the hold of sufficient dimensions to allow a sack of wheat to fall clear from the main deck, or from any point along the chutes or other apparatus to the bottom of the hold. These open spaces were not obstructed or guarded in any manner. That, after several layers of sacks had been packed in the hold where plaintiff was working, it became necessary to raise the receiving tables, and in order to do so it was first necessary to raise the chutes leading to and resting on the receiving table. Plaintiff, in performance of his duties, and after giving the usual signal, took hold of one of the chutes, raised it over his head the usual and ordinary way, and was holding it while others were lifting the table and placing additional sacks under it. While in that position, with the chute over his head, a sack of wheat weighing from 130 to 150 pounds fell from the rail chute or sliding board of the other gang, down upon the chute plaintiff was holding, and drove it down upon his head, shoulders, neck, and arms, knocking him down, rendering him unconscious, and injuring him severely and...