Stewart v. Sioux City & New Orleans Barge Lines, Inc.

• Decision Date: 09 September 1968
• Docket Number: No. 2,No. 52962,52962,2
• Citation: 431 S.W.2d 205
• Court: Missouri Supreme Court
• Parties: Aubrey L. STEWART, Respondent, v. SIOUX CITY & NEW ORLEANS BARGE LINES, INC., Appellant

Page 205

431 S.W.2d 205

Aubrey L. STEWART, Respondent, v. SIOUX CITY & NEW ORLEANS BARGE LINES, INC., Appellant.

No. 52962.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1968.

Sandor Korein, Cohn, Cohn & Korein, East St. Louis, for respondent, Edward Davidson, Rooney, Webbe & Davidson, St. Louis, of counsel.

Elmer Price, Milton I. Goldstein, Gary T. Sacks, St. Louis, for defendant-appellant.

STOCKARD, Commissioner.

Sioux City and New Orleans Barge Lines, Inc., owner of the Motor Vessel KANSAS CITY, has appealed from a judgment in the amount of $40,000 entered pursuant to jury verdict in favor of Aubrey L. Stewart, a deckhand aboard that vessel, on his claim under the Jones Act, 46 U.S.C.A. § 688, for personal injuries allegedly resulting from negligence, and by reason of unseaworthiness of the vessel.

Appellant does not challenge the sufficiency of the evidence. The facts, according to respondent, may be briefly summarized. On the night of August 4, 1964, pursuant to orders of the captain of the vessel, respondent went out on the unlighted deck after dark to tighten the 'port face wire' (steel cable) by use of a hand winch. He 'misjudged' the distance and stepped on another steel cable extending across his path parallel with and two or three inches above the deck which extended from an air winch to the barges secured to the vessel. There was grease on the cable and when he stepped on it he slipped and lost his footing, and then fell against the hand winch and was injured.

Instruction 2, Respondent's verdict directing instruction, was as follows:

'Your verdict, must be for plaintiff if you believe:

First, defendant failed to provide

a. reasonably safe conditions for work, or

b. a seaworthy vessel;

Second, defendant in paragraph a was negligent, or

in paragraph b, its vessel was unseaworthy, and

Third, such negligence or unseaworthiness directly resulted

in whole or in part in injury to plaintiff.'

In other instructions negligence and unseaworthiness were defined. Appellant assigns as error the refusal of the trial court to give the following instruction.

'The court instructs the jury that while the plaintiff did not assume the risk of an unsafe place to work, he did assume the normal risks incident to his employment as a deckhand on a vessel operating in the inland waterways.'

Appellant argues that while a wire or cable stretched across an aisle of a grocery store would not be the usual condition that a grocery store employee would expect to encounter, a cable leading from a winch and stretched two or three inches above the deck of a towboat 'was the usual condition of the deck and a condition of which (respondent) was thoroughly aware,' and that by refusing the requested instruction the court 'denied the jury the right to find that (respondent's) accident, if any, was caused solely by the normal risks incident to his employment as a seaman, rather than because of the negligence of (appellant).'

Respondent's verdict directing instruction submitted negligence under the Jones Act in failing to provide reasonably safe conditions for wortk, and also unseaworthiness of the vessel under general maritime law, which is not based on negligence. The defense of 'assumption of risk' is not available to an employer in an action based on the Jones Act, Roberts v. United Fisheries Vessels Co., 1 Cir., 141 F.2d 288, certiorari denied, 323 U.S. 753, 65 S.Ct. 81, 89 L.Ed. 603, and a seaman does not assume the risk of an unseaworthy vessel even if the condition is known. The New Berne, 4 Cir., 80 F.2d 244; Mahnich v. Southern Steamship Company, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. However, if a seaman is injured in one of the 'normal hazards of the business,' or as sometimes said, the 'usual risks of the calling,' without fault on the part of his employer (that is, not as the result of negligence and not as the result of an unseaworthy vessel), the seaman stands or 'assumes' the loss. The 'usual risks of the calling are not shifted on to the employer if the employer is guiltless of any fault.' Roberts v. United Fisheries Vessels Co., supra. That was the situation in Repsholdt v. United States, 7 Cir., 205 F.2d 852, where a seaman was injured during a storm at sea. ('Storms and heavy seas are 'obvious and well known risks of the business' of all seamen'). There apparently was no claim of unseaworthiness, and the record was 'barren of proof of negligence' on the part of the employer.

Generally speaking, the abstract statement of law in the requested instruction though cryptic in nature, may be assumed to be correct. The instruction did not direct a verdict and did not purport to be a converse instruction. It is in the form of a cautionary instruction, but perhaps a better description in this case would be an 'advisory' instruction.

The issues before the jury were whether or not the injuries of respondent were sustained in whole or in part as the direct result of the negligence of appellant submitted in Instruction 2, or as the direct result of unseaworthiness of the vessel, also submitted in Instruction 2. Appellant argues they were not, and if they were not then the injuries, to use the words of appellant in its brief, were 'caused solely by the normal risks incident to his employment as a seaman.' In other words, appellant contends that the 'sole cause' of respondent's injuries was something other than its negligence and something other than the unseaworthiness of the vessel.

The defense of 'sole cause' is now presented to the jury by use of a converse instruction, and the facts which support the contention that something other than the submitted negligence, and in this case, something other than unseaworthiness, was the sole proximate cause of the injuries may be argued to the jury. In this case, appellant did request and the trial court gave an instruction in the form of MAI 29.03(5), modified to met the submissions in Instruction 2, conversing both negligence and unseaworthiness. In that method, appellant's contention of 'sole cause' was presented to the jury.

The requested instruction was not necessary to present to the jury the issue of whether respondent's injuries resulted solely from the 'normal risks incident to his employment as a deckhand,' or whether the submitted negligence or unseaworthiness of the vessel contributed in whole or in part to his injuries. It was a cautionary instruction, the giving of which was discretionary with the trial court, and under the circumstances its cryptic language could easily be as confusing as enlightening. See the discussion in the concurring opinion in Tiller v. Atlantic Coast Line Railroad Company, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. See also Santos v. American Export Lines, Inc., 2 Cir., 339 F.2d 206, where it was held to be discretionary with the trial court to refuse to instruct the jury that a seaman does not assume the risks of employment. We find no abuse of discretion in this case in refusing the requested instruction.

Appellant next contends that instruction 2 was erroneous because it combined in one instruction two separate theories of recovery: (1) negligence under the Jones Act and (2) unseaworthiness under the general maritime law. Appellant argues that the instruction as given permitted the respondent to receive a double recovery.

Appellant admits that a claim based on negligence under the Jones Act may be combined with a claim of unseaworthiness, and that no election of remedies is required. See German v. Carnegie-Illinois Steel Corporation, 3d Cir., 156 F.2d 977. Appellant argues, however, that only one recovery for the injuries sustained may be recovered, Borgman v. Sword Line, Inc., Sup., 81 N.Y.S.2d 445, and that by combining the two theories of recovery in the same instruction 'the jury was led to believe that (respondent) was entitled to recover on both theories.' It is contended that the proper way 'to have cleared this confusion' would have been to give separate instructions on the two theories of recovery, and appellant cites Borgman v. Sword Line, Inc., supra, and Pearson v. Tide Water Associated Oil Co., Cal.App., 223 P.2d 669. In the Borgman case it is stated that 'Both issues (negligence under the Jones Act and unseaworthiness under general maritime law) with proper instructions must be submitted to the jury but damages are recoverable on one issue only.' In the Pearson case erroneous and confusing instructions were given, and the court stated that 'Both issues should have been mentioned separately to the jury and submitted each with the proper instructions * * * and an instruction excluding double recovery on the same facts should have been added.'

The effect of the rulings of these cited cases is that the injuries seaman is entitled to have each theory of recovery submitted to the jury, but that only one recovery for the injuries sustained may be had. Neither case purports to rule that the procedural requirements necessary to accomplish that result in the particular jurisdiction in which the case arose are required in this state. We are of the opinion that in this case the instructions, which followed our procedural rules for the submission of issues to the jury, accomplished this required result.

Instruction 2 submitted in the disjunctive two theories of recovery, negligence and unseaworthiness. Each was supported by substantial evidence. Therefore, the jury could have found that either was the direct cause in whole or part of respondent's injuries, or it could have found that each contributed or concurred in causing in whole or part his injuries. 'The Jones Act claim for negligence and the maritime claim for unseaworthiness provide seamen with two different grounds of relief for the commission for the same wrong.' Troupe v. Chicago, Duluth & Georgian Bay Transit Company, 2 Cir., 234 F.2d 253. We see no practical distinction in submitting two theories of negligence in the disjunctive (see MAI 24.01), which in...