Zimmerman v. West Coast Trans-Oceanic S. S. Lines

• Decision Date: 24 June 1953
• Docket Number: TRANS-OCEANIC
• Citation: 199 Or. 78,258 P.2d 1003
• Parties: ZIMMERMAN v. WEST COASTS. S. LINES.
• Court: Oregon Supreme Court

Page 1003

258 P.2d 1003

199 Or. 78

ZIMMERMAN v. WEST COAST TRANS-OCEANIC S. S. LINES.

Supreme Court of Oregon.

Argued Feb. 18, 1953.

Decided June 24, 1953.

John D. Mosser, of Portland, argued the cause for appellant. With him on the brief were Wood, Matthiessen, Wood & Tatum, of Portland.

Richard R. Carney, of Portland, argued the cause for respondent. With him on the brief were Kneland C. Tanner, Portland, and Edward J. Clark, of Portland.

Before LATOURETTE, C. J., and WARNER, LUSK, BRAND and PERRY, JJ.

BRAND, Justice.

The plaintiff, an able seaman on the S. S. Columbia Trader, brought an action at law under the Jones Act, Title 46 U.S.C.A. § 688, against the defendant West Coast Trans-Oceanic Steamship Lines, a corporation, for damages on account of an injury to his back. Verdict and judgment were for the plaintiff, and defendant appeals.

The injury is alleged to have been suffered while plaintiff was engaged with the bosun in raising a hatch leaf from the lower hold of the vessel to the deck above called the 'tween deck. The hatch leaf was raised by means of a rope, or hand line, which was pulled by the plaintiff and the bosun. The essence of the plaintiff's claim is that 'When the hatch leaf had reached about the level of the 'tween deck, the plaintiff got down on his knee and reached for the board. At that time the bosun suddenly slacked away on the line and threw all the weight of the hatch leaf on the plaintiff, causing his injuries.'

The defendant admitted that it operated the steamship and employed the plaintiff, and denied the other allegations of the complaint.

The complaint alleges, in substance, that the defendant ordered the plaintiff, in the course of his employment, to go with the bosun to stand upon the 'tween deck level and to pull upon a line fastened to one of the hatch boards which had been stored in the lower hold of the vessel, and to lift the hatch board therefrom to the 'tween deck level. A rope had been tied to the hatch board by persons in the lower hold and the hatch board was raised until it 'reached the square of the hold of said between-deck level.' The defendant, through the bosun, ordered plaintiff to lower himself on his knees and bend over and take hold of a hand-grip with one hand for the purpose of lifting the hatch cover, 'in addition to the pull of the line.' The plaintiff bent over in said position and seized the hand-grip with his right hand, with his left hand still exerting a pull upon the rope, when

'the said bosun suddenly and without warning negligently eased away on said line and thereby threw most of the weight of said heavy hatch board upon the plaintiff holding the same by his said hand; that because of the mate and fellow-seamen below, the plaintiff could not permit said board to fall back into the lower hold, and by exerting extreme effort he held onto the same and thereby received the grievous injuries hereinafter alleged.'

The allegations of negligence are as follows:

'(a) In not detailing and ordering an adequate and sufficient complement of the crew with bosun to said operation so that the same might be performed with safety and without overexertion.

'(b) In not setting up proper gear at the upper square of the hold so that the hatch leaves or boards could be raised from the lower hold to the between-deck level by block and tackle method.

'(c) In not furnishing the plaintiff a safe and seaworthy place in which to work in the particulars herein alleged.'

The remaining allegations of the complaint relate to the injuries alleged to have been proximately caused by the defendant.

During the trial of the case, both parties having rested, the plaintiff amended his complaint by adding the following assignment of negligence:

'(d) That the bosun suddenly and without warning eased away on the line, thereby throwing most of the weight of the hatch board on the plaintiff.'

The answer, as we have said, amounted to a general denial.

The first assignment of error is to the effect that the court, on examination of witness Michael J. Kneezer, erred in failing to sustain objection to the following question and succeeding line of testimony:

'Q. Do you know whether or not there is a usual and ordinary method used to carry out this work?

'Mr. Wood: I object to the question as incompetent, irrelevant, and immaterial * * *.'

Counsel for the defendant objected to the question as incompetent, 'and as evidently a forerunner of a question whether it is usual or customary to lift hatch boards out of the hold in some other different manner.' The specific ground of the objection was stated to be that such testimony would invade the province of the jury, that the operation was a simple one, and that the jury could pass upon it without the aid of expert testimony as to the customary method, or as to how it may be done in some other manner. He objected further upon the ground that it was not obligatory on the employer to provide the safest place to work, or the safest method, the only obligation being to use ordinary care and a reasonably safe method. The objection was overruled and counsel for the defendant asked for a general objection to that line of testimony.

In answer to the question as to the usual and ordinary method of carrying on the work, the witness Kneezer testified, in substance, that the ordinary method is to rig a block and tackle above the 'tween deck, lower the tackle down into the hold, attach it to the handle of the hatch board and haul it up through the hatch opening of the 'tween deck. The witness then stated that two men, or maybe more, will pull up the hatch board. The witness testified:

'A. * * * If it fouls up anywhere, one man can guide it away from the hatch or the beams when it comes clear. If it comes clear of the hatch you can swing it right in in the ordinary manner.

'Q. Have you seen this method used often in your experience? A. I have used it myself.

'Q. Have you seen it used often when other people had charge of the work? A. Well, at times, yes.

'Mr. Wood: At times, you say?

'The Witness: Yes, on various ships.'

He pointed out that by this method 'you got a sure way of pulling it up, and it is safe, and you can control it at all times.'

The admissibility of the evidence must be tested after consideration of other evidence with which it was connected. After the witness Kneezer had testified concerning the use of block and tackle for the purpose of lifting the hatch boards, he was asked, upon cross-examination, '* * * what other way would you do it under these conditions?' to which he answered, 'Well, you can do it another, which is possible, but it is dangerous.' Counsel for the defendant pressed the question as follows:

'Q. * * * but you said this second way of doing it, that it was dangerous. A. Well, you throw a line down in the hatch. You can pull the line up over the hatch coaming. Then you got to stoop over and pick it up, and if the other man lets go of it you may go down in the hole. When you are pulling it up that way you have got all that strain, and you have nothing to support yourself there.

'Q. You mean if two men are pulling it up by hand; is that what you mean? A. With a line, yes.

'Q. That's the way it was done in this case; you understand that, don't you? A. Yes, I understand that, yes.

'Q. That is another way of doing it though, isn't it? A. Yes, that is another way of doing it.'

The evidence indicates that the immediate cause of plaintiff's injury was the negligent action of the bosun in suddenly easing his hold on the line and allowing the 70-pound weight to jerk the plaintiff while he was on his knees in attempting to guide the board through the hatch. But, in view of the evidence that the method employed was dangerous, we think it was permissible to show that a safer method was in use and was feasible, which, if employed, would have eliminated the dangerous condition which made the injury possible. The usual method of carrying on an operation may be shown, not as establishing the standard of reasonable care as a matter of law, but as evidence for the consideration of the jury in its determination as to whether the method used was...