Wychgel v. States S. S. Co.

• Decision Date: 10 March 1931
• Parties: WYCHGEL v. STATES S. S. CO. ET AL.
• Court: Oregon Supreme Court

296 P. 863

135 Or. 475

WYCHGEL v. STATES S. S. CO. ET AL.

Supreme Court of Oregon

March 10, 1931

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Action by Jac Wychgel against the States Steamship Company and another. Nonsuit as to defendant not named. From a judgment in favor of plaintiff, named defendant appeals.

Modified and, as modified, affirmed.

This is an action for damages on account of a personal injury. The action is brought under the Merchant Marine Act of 1920, § 33 (46 USCA § 688). The cause was tried to the court and a jury resulting in a judgment for plaintiff. Defendant States Steamship Company appealed.

RAND J., dissenting in part.

Erskine Wood, of Portland (Wood, Montague & Matthiessen, of Portland on the brief), for appellant.

B. A. Green, of Portland, for respondent.

BEAN C.J.

The plaintiff, Jac Wychgel, was employed as an able-bodied seaman on the steamship California, owned by the States Steamship Company, which was sailing ships from Portland to the Orient and back. He was injured by falling through a hatchway when the steamship California was fastened to the dock at Tingsau, Manchuria, China. He was placed in a hospital in Japan, and on his return to Portland brought an action at law against the States Steamship Company. He sustained a fracture of the eighth rib and a fracture of the left scapula or shoulder blade, so that he cannot raise his left arm forward and hold it straight up over his head, and other injuries. His injuries are more or less permanent. Wychgel was forty-three years old and unmarried; he had been a seaman since he was sixteen years of age and his wages were $62.50 per month and board.

Plaintiff alleges in his complaint, in effect, that the hatch board which gave way with him, and so precipitated him into the hold, "had been improperly placed over said hatch"; that the defendant was careless and reckless, in that it did not provide competent and careful officers in the direction of the work in which plaintiff was engaged, in that they, through their agents, servants, and officers of the ship, ordered and permitted plaintiff to go upon said hatch, when a reasonable and careful inspection of the same would have disclosed that they were in an unsafe and dangerous position; in that the officer in charge of the work in which plaintiff was employed failed to inspect the said hatches; in that said officer failed to warn the plaintiff of the dangerous, insecure, and unsafe position of said hatch cover and in failing to provide safe and effective ways, rules, and machinery for the proper performance of the work in which plaintiff was engaged.

At the time of the trial it appeared that the Columbia Pacific Shipping Company had nothing to do with the case; that it was not the owner of the ship nor the employer of Wychgel, and a nonsuit was granted as to it. At the close of the testimony the States Steamship Company moved for a directed verdict, which was denied. This motion was renewed in the form of a requested instruction, which was also denied. The jury rendered a verdict for plaintiff for $30,000, the full amount prayed for. A motion for a directed verdict, on the same grounds as this appeal, was denied.

The first assignment of error is that the court erred in refusing to grant defendant's motion for a directed verdict; and also erred in refusing to grant defendant's request that the jury be instructed to find their verdict for defendant States Steamship Company. Defendant contends there was no evidence to take the case to the jury.

Plaintiff having elected to bring this action under section 33 of the Merchant Marine Act of 1920 (46 USCA § 688) and the Federal Employers' Liability Act (45 USCA §§ 51-59), his rights and obligations depend upon the principles of law as interpreted and applied in the federal courts. New Orleans & N.E. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167. The Merchant Marine Act of 1920, § 33, reads as follows: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. (Mar. 4, 1915, c. 153, § 20, 38 Stat. 1185; June 5, 1920, c. 250, § 33, 41 Stat. 1007)."

The statutes of the United States extending the remedy in cases of personal injury to railway employees referred to in the foregoing statute, and by reference incorporated therein, are known as the Federal Employers' Liability Act and amendments. See 45 USCA Railroads, §§ 51-59, inclusive. In so far as material here they read as follows:

"§ 51. Every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. * * *

"§ 53. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured, * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee.

"§ 54. In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury * * * of such employee."

Section 56 gives to state courts concurrent jurisdiction with the United States district courts, and provides that no case brought in a state court shall be removed to the federal court.

The evidence indicated that it was the duty of the officers of the ship, and particularly of the third officer, to inspect and supervise the placing of the hatches; that the hatches, when properly placed, will not fall; that just before the ship was to pull out of Tingsau the plaintiff was ordered by one of the ship's officers to "go to No. 2 hatch and lower that gear down and see that the slings are off the hatches"; that plaintiff went to the hatches as ordered, looked to see if the hatches were in place, and could see nothing wrong with them; that at the time there were ropes, tackles, and slings lying all over the hatches; that, as was necessary in obeying the order of the officer, Wychgel stepped upon the hatch board to clear the hatch of the articles mentioned, and that the hatch gave way, and the section of the hatch, together with the plaintiff, fell into the hold of this ship on the betweendeck, and he sustained the injuries complained of.

No attempt was made or any evidence introduced by defendant tending to show why the hatch fell, nor did it offer any excuse or show any circumstances which would relieve it or tend in any way to show that due care had been used by the officers of the ship in inspecting and placing the hatches and in furnishing plaintiff with a reasonably safe place to work.

Plaintiff was rendered unconscious by the fall and did not explain why the hatch fell, except that he stated plainly that, if the hatch had been properly placed, it could not have fallen, and that it would have been impossible for the hatch to have fallen if it had been properly placed. He states that, on account of the ropes and slings--perhaps it should be called rigging--placed all over hatch No. 2, he could not see whether the hatches were in proper position. One of the officers of the ship seemed to indicate by his testimony that, although the hatch was covered over or partially covered over with ropes, slings, etc., the plaintiff could have seen whether the hatch was in proper position by noticing the rise of the rigging, where the hatch would stick up.

The evidence, which is practically uncontradicted, shows the following facts: That the hatches on the steamship California were under the management of defendant or its servants, other than the plaintiff; that the hatches, in the ordinary course of things, do not fall when they have been properly placed that the plaintiff was ordered to clear the ropes, tackles, pulleys, etc., from the hatches; that in obeying this order it was necessary to step upon the hatch; that before plaintiff stepped on the hatch he looked to see if the hatch was in proper condition, and he could see nothing wrong with it; that he stepped upon the hatch in...