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District Court of Appeal, First District, Division 1, California.


Civ. 9190.

Decided: December 28, 1934

Sawyer & Cluff, Webster Street, and Daniel W. Evans, all of San Francisco, for appellant. A. Don Duncan, of San Francisco, for respondent.

Plaintiff, a seaman employed on the Fort Bragg, a coastwise vessel, was injured aboard the ship while unloading part of a deckload of timber at Vallejo, Cal. He brought this action for damages against both defendants under the terms of the Jones Act § 33 (46 USCA § 688). At the trial, a nonsuit was granted as to the defendant Beadle Steamship Company, Limited (a corporation), from which no appeal was taken, and it is consequently eliminated from the case. The jury returned a verdict against the defendant George S. Beadle for $10,000, which the trial court reduced to $7,000 on motion for a new trial, and said defendant has appealed from the judgment.

The amended complaint alleged that respondent suffered numerous injuries of a serious nature through the negligence of appellant in failing to provide respondent with a reasonably safe place to work. The particulars in which appellant failed in this duty are alleged to be in piling sling loads of lumber on the deck next to the open hold of the vessel without piling, or properly securing the lumber, and failing to provide safeguards around the open hold; that as a result of this negligence certain lumber gave way under respondent as he was attempting to fasten a loading sling under a sling load of this lumber, precipitating him into the hold, causing the injuries complained of. The answer denied negligence, and set up as affirmative defenses, assumption of the risk by respondent and what is stated to be contributory negligence. It may be doubted that the plea of contributory negligence is sufficient, but no question is made on that point, and in any event, under the Jones Act, contributory negligence is not a defense, but may be considered only in mitigation of damages.

At the outset it may be well to state that we feel that the evidence was sufficient to go to the jury on the question of appellant's negligence, and is sufficient to sustain the verdict on that point.

As heretofore noted, appellant pleaded as an affirmative defense assumption of the risk, and requested the court to give instructions on that question. This, the court, however, refused to do, apparently on the theory that such defense was not open to appellant in a case of this character. For this error, we feel that the judgment must be reversed for the reasons hereinafter set forth.

The Jones Act, by reference, incorporates the Federal Employers' Liability Act (45 USCA §§ 51-59). The Federal Liability Act eliminates the doctrine of assumption of the risk as a defense in cases where the employer has violated a statute enacted for the safety of employees; otherwise it remains. 45 USCA § 54; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1.

The common-law doctrine, however, is limited, and risks of the employment due to the employer's negligence are not assumed unless the employee becomes aware of the defect or disrepair and of the risk arising from it, unless the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. Seaboard Air Line Ry. v. Horton, supra; Southern Railway Co. v. Hermans (C. C. A.) 44 F.(2d) 366.

The Horton Case, it is true, was a railroad case under the Federal Liability Act, but that act is a part of the Jones Act, as we have already seen. The Hermans Case was, however, a case brought under the Jones Act, and the issue there was whether the employer had provided the employee with a reasonably safe place to work. It may be noted that in construing these statutes, the Federal Liability Act and the Jones Act, the state courts are required to adopt the construction placed on them by the federal courts. Pryor v. Williams, 254 U. S. 43, 41 S. Ct. 36, 65 L. Ed. 120.

We are therefore satisfied that the doctrine of assumption of the risk is applicable in a limited manner to cases of injuries to seamen, when the action is brought under the Jones Act in the state courts, and it remains only to be seen if there was any evidence in the case to justify instructing the jury on that issue.

The ship's hold was open, which fact was admittedly known to respondent; the lumber on which he was working was so close to the open hold that if he fell he would almost certainly fall down into it, and he also knew that no safety lines or other safeguards were present to prevent him falling into the hold should he slip from his place of work. There was evidence also that he knew that the lumber he was working on was landed in sling loads and not piled, and was not as secure as piled lumber. There was also some evidence, although contradicted, that respondent disobeyed specific orders in doing his work in the manner he was pursuing at the time of his injury. Respondent was an experienced seaman, who had made other voyages on the Fort Bragg and other lumber vessels. Under such circumstances, appellant was entitled to have the jury instructed on the theory of assumption of the risk, and the court's refusal to do so was reversible error. Pryor v. Williams, supra; Southern Railway Co. v. Hermans, supra; Holy Cross Gold Min. Co. et al. v. O'Sullivan, 27 Colo. 237, 60 P. 570.

Respondent cites the following cases from California, claiming that assumption of the risk does not apply. They are Anderson v. Matson Nav. Co., 125 Cal. App. 447, 13 P.(2d) 1041, Lejeune v. General Petroleum Corp., 128 Cal. App. 404, 18 P.(2d) 429, and McGeorge v. Chas. Nelson Co., 107 Cal. App. 148, 290 P. 75. In the first two cases the injury resulted from the negligence of a fellow servant, which defense is excluded under the Federal Liability Act. Chicago, R. I. & P. R. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 275, 64 L. Ed. 430.

In the McGeorge Case the injured man was an assistant engineer who had been ordered to adjust a bolt, using a cold chisel, while a fellow employee struck the end with a heavy hammer. After several strokes, the hammer missed the bolt and struck the plaintiff in the head and face. Clearly this was negligence of a fellow servant, and also there was the failure of the employer to furnish proper appliances, since there was evidence that there was on the vessel, which was at sea, no wrench of the proper size to turn the bolt. The court recognizes that under proper circumstances the doctrine of assumption of the risk applies to seamen but not under the particular facts. Furthermore, the instructions given were too broad. We are of the opinion that that case is clearly distinguishable under the facts.

Many other errors are claimed by the appellant, but as they are not apt to occur on another trial, it is not necessary to refer to them. In passing, we may say that instruction No. IX is erroneous in using the words “built up,” as one of the issues was whether respondent had slipped on lumber that had not been piled, or lumber that had been piled as respondent claimed it should have been, and the quoted words are general enough to include both types.

For the reasons given, the judgment must be and is reversed.

JOHNSTON, Justice pro tem.

We concur: TYLER, P. J.; CASHIN, J.