Yanow v. Weyerhaeuser Steamship Company, 15452.

• Decision Date: 21 February 1958
• Docket Number: No. 15452.,15452.
• Citation: 250 F.2d 74
• Parties: Harold YANOW, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

250 F.2d 74 (1957)

Harold YANOW, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, a corporation, Appellee.

No. 15452.

United States Court of Appeals Ninth Circuit.

November 21, 1957.

Rehearing Denied January 17, 1958.

As Amended February 21, 1958.

Peterson, Pozzi & Lent, Nels Peterson, Gerald H. Robinson, Portland, Or., Norman Leonard, San Francisco, Cal., for appellant.

Gray & Lister, H. Lawrence Lister, Floyd A. Fredrickson, Portland, Or., Lasher B. Gallagher, San Francisco, Cal., for appellee.

Before DENMAN, Circuit Judge (Retired) and BARNES and HAMLEY, Circuit Judges.

DENMAN, Circuit Judge.

This case was transferred from the Circuit Court of the State of Oregon, County of Multnomah, to the United States District Court for the State of Oregon on the verified petition of the Weyerhaeuser Steamship Company, of which we take judicial notice, alleging as follows:

"At all times during July, 1954, and at all times since then defendant was and now is a corporation organized and existing exclusively pursuant to the laws of the State of Delaware and on July 31, 1954, petitioner was and at all times since has been and now is exclusively a citizen of the State of Delaware. Petitioner was not at any time hereinabove mentioned nor is it now a citizen of the State of Oregon.

"That at all times hereinabove mentioned plaintiff, Harold Yanow, was and now is a citizen and resident of and domiciled in the State of Oregon."

Plaintiff Yanow appeared and moved for a jury trial thereby accepting as true the allegations creating the diversity jurisdiction.

He appeals from a judgment in which the verdict held the steamship company not to be liable for injuries he alleged he received by slipping on grease on the deck of the steamship company's steamship, the W. H. Peabody. He complied with Fed.Rules Civ.Proc. rule 75(d), 28 U.S.C.A., in stating his points on appeal.

The evidence shows that Yanow was working as a longshoreman at Coos Bay, Oregon, on August 1, 1954, aboard appellee's vessel the W. H. Peabody, a 10,000 ton Liberty Ship. The gang he was working with was engaged in stowing the deck load of lumber at No. 2 hatch. This involved moving loads of lumber on rollers into position where the men were working to build up the level of the "floor". A load of lumber had just been landed and appellant needed a peavey to facilitate his work. He went to get one behind the No. 2 port winch and there is strong testimony, if it be believed, that as he walked by the winch he slipped on a "blob of grease" and fell, striking his back on part of the winch on the way down.

As a result of this fall, there is evidence that the appellant aggravated a previous back condition and sustained a bruised back, a bumped head, and had the wind knocked out of him.

There was no direct proof of how the grease got on the deck near the winch, but it might be inferred from the evidence that it came from lubrication of the winch or from a coiled wire fall which was on the deck between the winch and the deckhouse.

There is no question that there was evidence warranting a verdict for Yanow for it is now a long established law that a shipowner is liable to a stevedore loading its vessel if it be unseaworthy as to its decks by the presence thereon of sufficient oil or grease to make it slippery to one walking over it, and the stevedore is injured thereby. The liability exists although the shipowner has no knowledge of the presence of the oil or grease. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 340, 75 S.Ct. 382, 99 L.Ed. 354. Since Yanow was injured on the ship on navigable waters, his rights are determined by maritime and not state law. Pope and Talbot v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143.¹

Yanow contends that two erroneous instructions given and a refusal to give a requested instruction so prejudiced his case with the jury that he is entitled to a new trial.

The first instruction complained of is obviously wrong since Yanow's contention was that unseaworthiness could create liability without "fault of anyone." It is:

"Just because an accident happened does not mean that, under the rules of law, there is any liability upon the Weyerhaeuser Steamship Company. In other words, the mere happening of an accident does not entitle the plaintiff to prevail in the absence of a breach of duty on the part of the defendant which caused or contributed to the injuries which plaintiff sustained. There are such things as unavoidable accidents — accidents which happen without the fault of anyone — and if you determine that such is the case here, then your deliberations will be at an end, and your verdict must be for the defendant even though the plaintiff was injured." (Emphasis added.)

After this instruction on unavoidable accident had been given to the jury, the attorneys repaired to the court's chambers where the following occurred:

"Mr. Peterson: Plaintiff excepts to the court\'s instruction to the jury, in substance, that if this was an unavoidable accident the plaintiff cannot recover. The point of my exception is that the unavoidable accident instruction in this kind of a situation is completely beside any issue in the case.

"The Court: Is that true? Do you think that unavoidable accident should be given?

"Mr. Lister: Well, your Honor, I think as a part of it that, technically, unavoidable accident would be the

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