Summary
In Engfors v. Nelson Steamship Co., 131 Or. 108, 115 (280 P. 337), an action brought under the Seamen's Act, which incorporates the Federal Employers' Liability Act by reference, it was held that an employee does not assume the risk of the employer's negligence unless the risk is so apparent and obvious that the employee must have known and understood it, or of such long standing that his appreciation and knowledge could be implied.
Summary of this case from Christie v. Great Northern Ry. Co.Opinion
Argued April 24, 1929
Affirmed September 17, 1929 Rehearing denied November 19, 1929
From Multnomah: LOUIS P. HEWITT, Judge.
For appellant there was a brief over the names of Messrs. Raffety Pickett and Messrs. Wilson Reilly with oral arguments by Mr. Harry L. Raffety and Mr. John F. Reilly.
For respondent Gust Engfors there was a brief over the names of Messrs. Davis Harris and M.B. Meacham with an oral argument by Mr. Paul R. Harris.
For respondent Nelson Steamship Co. there was a brief over the name of Mr. Joseph K. Carson.
Defendant Stout Lumber company of Oregon, hereinafter called appellant, appeals from the judgment in favor of plaintiff for the sum of $3,500. Plaintiff while working aboard a vessel operated by appellant fell from the coam of a hatchway into the hold of the vessel severely injuring himself. The vessel was a schooner plying along the Pacific coast and was finishing a load at Portland, Oregon, at the time plaintiff received the injury. He had been ordered to descend into the hold of the vessel, there to assist in placing the lumber as it was delivered into the hold. In going from the place in which he was to the corner of the hatchway where the ladder was, he walked along the hatchway coaming and slipped, thereby falling into the hold. The charges of negligence are in the failure of appellant to provide a guard around the hatchway and in piling the lumber on deck too near the coaming. The lumber was piled lengthwise of the vessel against the coaming to the top thereof. Above the top of the coaming the ends extended to within 6 to 10 inches therefrom. Plaintiff testified that he never had known lumber being piled so near the hatchway coaming. The defense is that there is no evidence tending to prove negligence on the part of appellant and that plaintiff assumed the risk by attempting to walk along the hatchway coaming when he could have walked on the lumber which was level and about 2 1/2 feet above the top of the coaming. The case was tried to the court without a jury. Appellant states in its reply brief: "In considering this appeal it is not necessary to go beyond the findings of fact as made by the trial court." The findings of fact pertinent to the decision are as follows:
"That on or about the 14th day of January, 1927, the plaintiff was in the employ of the defendant, Stout Lumber company of Oregon, as an able-bodied seaman on the steamship `Martha Buehner' and on said date was directed by said defendant to go into the lower hold of number 1 hatch of said vessel for the purpose of assisting in the stowing of general cargo therein and while the plaintiff was attempting to reach the ladder leading into the hold of said vessel, which ladder was stationed in the after port corner of said hatch for the purpose of descending into said lower hold he passed along said hatch coaming and plaintiff was through the negligence and carlessness of said defendant, as more specifically hereinafter set forth, precipitated through said No. 1 hatch a distance of approximately 15 feet to the hold of said vessel, and received severe and permanent injuries as hereinafter more specifically set forth.
"That at the time of plaintiff's injury said steamer `Martha Buehner' had upon her main deck a partial cargo of lumber; that said lumber was placed and stowed upon said main deck so that it was against the hatch coaming on the port side of No. 1 main deck hatch up to within approximately 6 or 8 inches of the top of said hatch coaming; that from said point it was piled from 6 to 10 inches from said coaming and extended approximately 2 1/2 feet above the top of said hatch coaming; that the top of said hatch coaming was 7 inches wide, level and covered with sheet iron; that there was a level surface several feet wide on the top of the dock load of lumber along the entire port side of said No. 1 hatch; that said No. 1 hatch was open and no guard rail or rope was around the same.
"That it is not customary to leave a space of 1 1/2 to 2 feet between the deck load of lumber and the hatch coaming, as alleged in the complaint.
"That there was a safe, convenient and obvious way for plaintiff to have proceeded into the hold, to wit: Along the top of the lumber which was loaded evenly and smoothly; that plaintiff knew of this way; that plaintiff, with knowledge of said safe and convenient way, chose, without necessity and without orders from any one, to walk along said hatch coaming; and that the conditions in and about the way over which plaintiff was proceeding were open, obvious and apparent to plaintiff.
"That plaintiff was a member of the crew of the steamer `Buehner,' but did not sign any articles as a seaman on said vessel.
"That the defendant, Stout Lumber company of Oregon, did not use reasonable care in the prosecution of the work at the time plaintiff was injured in that said defendant failed to use and employ a guard rail for the protection and safety of the plaintiff and other workmen working in proximity to said hatch, and in that said defendant piled the deck load of lumber within 6 to 10 inches from said hatch coaming. That said defendant was negligent in building up and stowing said deck load of lumber on the main deck of said `Martha Buehner,' so that a space of only 6 to 10 inches was left clear around the hatch coaming, and in failing and neglecting to have said hatch equipped with a guard rail around said hatch for the protection and safety of plaintiff.
"That plaintiff was negligent in attempting to proceed by the route he chose, the conditions in and about the same being obvious and apparent, instead of by an obvious and safe route available to him and that such negligence on the part of the plaintiff contributed to the happening which caused his injuries, requiring a mitigation or reduction of damages.
"That as a direct and proximate result of said negligent acts of said defendant, Stout Lumber company of Oregon, and contributed to by plaintiff's acts as hereinbefore set forth, the plaintiff while proceeding as aforesaid was violently precipitated into the hold of said vessel and received serious injuries, to wit: Plaintiff suffered a fracture of both wrists and as a result of the same the bones thereof are out of alignment and plaintiff is unable to rotate his said wrist.
"That plaintiff suffered a cut on the right side of his forehead; that plaintiff's nose was injured and smashed, and that as a result of said injuries plaintiff suffered great physical pain and inconvenience, and his earning capacity has been greatly reduced and that plaintiff's injuries at the present time are fairly well cured, but are in some measure permanent.
"That as the proximate result of said defendant's negligence plaintiff has been damaged in the sum of thirty-five hundred and no/100 ($3,500) dollars."
Judgment was entered upon the findings. There is no controversy about the pleadings.
AFFIRMED. REHEARING DENIED.
Parties to the appeal agree that the case must be decided in accordance with the seamen's act, March 4, 1915, ch. 153, § 20, 38 Stat. 1185; June 5, 1920, ch. 250, § 33, 41 Stat. 1007 (46 U.S.C.A. 688). Under those acts the defense of the assumption of risk has been abolished in all cases where the employer had violated the terms of said acts "except as specified in § 4 of the Federal Employers' Liability Act, the employe assumes the ordinary risks of his employment and, when obvious or fully known and appreciated, the extraordinary risks and those due to negligence of his employer and fellow employes": Toledo, St. L. W.R.R. v. Allen, 276 U.S. 165, point 3 of the head notes ( 48 Sup. Ct. 215, 72 L.Ed. 513); Boldt v. Penn. R.R. Co., 245 U.S. 441, 445 ( 38 Sup. Ct. 139, 62 L.Ed. 385). The same rule applied to seamen in performance of their duties: Peterson v. Sanford Ross, Inc., 28 F.2d 283.
This court is bound to follow the law as construed and interpreted by the United States supreme court. The action is one to be determined by the federal statutes: Panama R. Co. v. Johnson, 289 Fed. 964; Reithley v. North Pac. S.S. Co., 232 Fed. 255; Roberts v. C., C., C. St. L. Ry. Co., 202 Ill. App. 480; Harness v. Baltimore O.R. Co., 86 W. Va. 284 ( 103 S.E. 866). The safety appliance act of the United States does not abolish the defense of assumption of risk, except as mentioned in the act: Wintermute v. Oregon-Washington R. N. Co., 98 Or. 431, 435 ( 194 P. 420), from which we take the following:
"`That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of any of its employes, such employe 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 employes, contributed to the injury or death of such employe.'
"As congress legislated in this matter in the exercise of its paramount authority over interstate commerce, the laws thus promulgated constitute the exclusive standard by which litigation for injuries growing out of the handling of interstate commerce must be adjudicated." (Authorities cited.)
The disposition of the case hinges on the application of assumption of risk and contributory negligence. The two are often confused because they are merely related. The United States supreme court in Schlemmer v. Buffalo, Rochester and Pittsburg R. Co., 205 U.S. 1, 12 ( 27 Sup. Ct. 407, 51 L.Ed. 681), expressed the law regarding the two as follows:
"Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. * * * The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master, a matter upon which we express no opinion, then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name."
The claim of appellant is that there were two ways open to plaintiff: one of which was safe and the other dangerous; that plaintiff with full knowledge of the conditions chose the dangerous instead of the safe way, therefore, he assumed the risk. The authorities disagree in the application of the law to similar cases. Some hold similar conduct to be assumption of risk: Wintermute v. Oregon-Washington R. N. Co., above; Hartwick v. Chicago A.R. Co., 286 Fed. 672. Other courts have held similar conduct to be contributory negligence: Beulah Coal Mining Co. v. Verbrugh, 292 Fed. 34; American Car Foundry Co. v. Duke, 218 Fed. 437; Anzolotti v. McAdoo, 262 Fed. 568; 18 R.C.L. 671-675, §§ 164, 165.
The writer is of the opinion that assumption of risk is only correctly applied when an employe is held to assume the natural and ordinary risks of his occupation and that it should never be said that he assumes the risk of his employer's negligence, unless the risk is so apparent and obvious that the employe must have known and understood it or of such long standing that his appreciation and knowledge will be implied. He might be guilty of contributing to his own injury but under the said employers' liability act that is not a complete defense. Contributory negligence will not prevent an injured employe from recovering damages; it may be used only to reduce the amount, or, more accurately speaking, unless he is more guilty than his employer he will recover some damage. If it be that he assumed the risk he can not recover at all. Under the federal employers' liability act (45 U.S.C.A., §§ 51-59) when the injury is caused by the failure of the master to provide a safe place to work or safe appliances the defense of assumption of risk can not be made.
In the instant case the plaintiff went to work at 1 o'clock on the 13th. He was injured the next morning while obeying an order to descend into a hold of the ship. He testified that he had just been assisting to uncover the hatchway and that he had never known lumber to be piled so close to the hatchway coaming. He had had about 20 years experience as a seaman and had considerable experience on vessels engaged in transporting lumber. The learned court below found as a fact that plaintiff was negligent in choosing to walk along the coaming when he might have walked safely on the top of the lumber, but concluded that he did not assume the risk because his injury was the result of the failure of the operator of the vessel to provide a guard along the coaming to protect the workmen from falling into the hold and in the negligence of the master in piling the lumber too close to the coaming. In other words the learned court below found that the operator of the vessel failed to provide safety appliances required by the statute and failed to provide a safe place to work as described by the statute: § 4 of the Fed. Employers' Liability Act; Cricket S.S. Co. v. Parry, 263 Fed. 523. In order to remove the covering of the hatchway the employes must have been standing either on the coaming or on the deck. They could not have reached from a distance of 2 1/2 feet, which was the height of the lumber above the coaming, to take up the covering of the hatchway. With the lumber piled within 6 or 10 inches of the coaming it would have been necessary for the workmen, who were piling the lumber, to have been standing either on the deck or the coaming. The danger of walking along the coaming is not so obvious and certain as to justify the court in holding as a matter of law that plaintiff assumed the risk. The findings of the court are binding upon this court as to the facts.
We conclude after a thorough examination of all the authorities that the findings of the learned circuit court support the judgment. It is impossible to reconcile all of the decisions with their various shades of difference regarding assumption of risk and contributory negligence, but it is our conclusion that plaintiff did not assume the risk of defendant's negligence in failing to place a suitable guard around the coaming of the hatchway and in failing to leave sufficient space for the workmen
AFFIRMED. REHEARING DENIED.
BELT and BEAN, JJ., concur.
BROWN, J., absent.