Watson By and Through Watson v. Puget Sound Tug & Barge Co.
| Decision Date | 05 April 1989 |
| Citation | 771 P.2d 307,96 Or.App. 79 |
| Court | Oregon Court of Appeals |
| Parties | Richard H. WATSON, By and Through Lyle A. WATSON, Personal Representative of the Estate of Richard H. Watson, Deceased, Respondent, v. PUGET SOUND TUG & BARGE COMPANY, a Washington corporation, doing business as Columbia Marine Lines; and Columbia Marine Lines, Inc., a Delaware corporation, Appellants. A8509-05722; CA A44520. |
John R. Faust, Jr., Portland, argued the cause for appellants. With him on the briefs was Schwabe, Williamson & Wyatt, Portland.
Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Frank Pozzi and Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland.
Before RICHARDSON, P.J., and NEWMAN and RIGGS, JJ.
Plaintiff 1 sued to recover for an occupational disease that he alleged that he had acquired during his work for defendants as a deckhand on tugboats and barges. The court submitted two bases of liability to the jury: negligence under the Jones Act, 46 U.S.C.App. § 688, and unseaworthiness under general maritime law. Defendants asserted the affirmative defense of contributory negligence. The jury found that defendants' vessels were "unseaworthy in a manner that was a substantial factor in causing plaintiff's injuries"; that defendants' negligence caused plaintiff's injuries; that plaintiff did not know and could not, with reasonable diligence, have known before September 16, 1982, "of the existence of the physical conditions which are the subject of this lawsuit and that such injuries were related to his employment"; and that plaintiff was not negligent "in a manner which contributed to his own injuries." Defendants appeal plaintiff's judgment and assign as errors that the court denied their motions for a directed verdict and that it instructed the jury on assumption of the risk. We affirm.
We review the evidence to determine whether it was sufficient to support the jury's verdict. Menke v. Bruce, 88 Or.App. 107, 109, 744 P.2d 291 (1987). Except for a brief period, plaintiff worked as a barge deckhand on the Columbia River from 1950 until 1984. The work was physically hard; it included pulling heavy lines, heavy lifting, handling heavy straps, working with cables and ropes and climbing. The work became more difficult during the course of his employment, because defendants reduced the number of deckhands assigned to each crew and towed larger barges. On the largest barges, plaintiff had to work with "superstraps," which were hard core metal wires one and one-half inches in diameter, 30 feet in length, weighing approximately 190 pounds. Defendants regarded him as one of their best deckhands, "a real mule."
Plaintiff often suffered injuries at work, but he recovered from them. In 1959, he hurt his back and went to a chiropractor for treatment. He strained his back in 1960 and injured it again in 1976. He injured his foot in 1964 and his wrist in 1977. He injured an elbow and suffered a sprained finger in 1984. In July, 1984, he told the doctor that he had had trouble walking on a barge, and on December 5, 1984, he reported that he was unable to walk on a barge. That month, Dr. Skirving, plaintiff's physician, took x-rays of his back. They showed degeneration of his lumbar spine and hips. Skirving informed defendants that plaintiff had degenerative arthritic changes in his back and hips. Defendants then retired plaintiff.
Skirving testified that plaintiff's problems were a result of continued trauma of working. Dr. Thompson, an orthopedic physician who treated plaintiff after he had retired, testified that "repeated acts of having to handle lines and gear and doing heavy manual labor" caused "the injuries and what happened to him."
At the close of plaintiff's case, and at the close of all the evidence, defendants moved for a directed verdict on three grounds: (1) plaintiff had failed to introduce sufficient evidence to prove that defendants were liable due to negligence or unseaworthiness, because he did not identify a standard of care or of seaworthiness that defendants had violated; (2) plaintiff did not have an "occupational disease" for purposes of the Jones Act; and (3) the Statute of Limitations barred plaintiff's claim.
To prove a claim of negligence under the Jones Act, a plaintiff must show that the defendants failed to exercise reasonable or ordinary care under the circumstances. 2 Carlson v. Wheeler-Hallock Co., 171 Or. 349, 355, 137 P.2d 1001 (1943). Although plaintiff's evidence showed that his work was physically hard and that defendants could have made it easier, defendants argue that he failed to produce evidence of a standard of care that they had breached. They assert that the jury "cannot unaided determine what equipment and manning are required to meet the legal standards of due care * * * on the particular operations of river tugs and barges." His evidence, however, was sufficient. Plaintiff's witnesses testified that defendants did not employ enough crew members to complete the assigned tasks without injury to the crew and that the equipment that defendants provided to plaintiff, or authorized others to provide to him, was inadequate to avoid injury. There was also evidence from which the jury could find that defendants knew or should have known of equipment and manning deficiencies on vessels that they did not own, but on which they required plaintiff to work. Accordingly, the jury could find that defendants failed to exercise ordinary and reasonable care under the circumstances. Defendants' showing...
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Watson v. Puget Sound Tug & Barge Co.
...618 779 P.2d 618 308 Or. 315 Watson v. Puget Sound Tug & Barge Company NOS. A44520, S36233 Supreme Court of Oregon AUG 29, 1989 96 Or.App. 79, 771 P.2d 307 ...