PAULSEN v. McDUFFIE

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

PAULSEN v. McDUFFIE.a1

Civ. 8894.

Decided: November 27, 1934

J. Hampton Hoge, of San Francisco (A. Dal Thomson, of San Francisco, of counsel), for appellant. Ford & Johnson, of San Francisco, for respondent.

An action to recover damages for personal injuries.

Plaintiff was a seaman employed by defendant in operating the ship Kehoshee, which was moored at a wharf in San Francisco. At the time of his injury he was acting as boatswain and assisting in heaving in or bringing on board from the dock one of the ship's mooring lines. This line was a manila rope from six to eight inches in circumference. The work was being done by means of a steam winch, which consisted of a revolving drum, which was referred to by the different witnesses as the “gypsy head,” “nigger head,” or “spool.” While engaged in this work plaintiff's blouse, a loosely fitting shirt, caught either between the strands of the line or between the line and the drum, and he was injured. He claims that this was due to defendant's negligent method of maintaining the line, namely, that its strands were frayed and loose, and this, with the manner in which it was rigged, caused it to slip or, as he described it, surge on the revolving drum. He was attempting to correct the latter difficulty when the accident occurred.

A jury returned a verdict in his favor.

The defendant, who has appealed from the judgment, entered thereon, contends that no negligence on his part was shown; that plaintiff assumed the risk of injury, and, further, that the trial court erred in certain of its instructions to the jury.

The seamen with whom plaintiff was working testified that the accident occurred about 10:30 o'clock at night. It was dark, but that there were lights on the ship's quarters and one or two lights on the dock alongside. One of the seamen testified that before they commenced to heave the line in the chief officer of the ship ordered him to place the same around what is called the bit, which is an upright stationary metal cylinder; that the proper method of heaving in the line was to place the same around the fair lead, which also was an upright metal cylinder the upper portion of which revolves; that the function of the fair lead is to control the incoming line so that it will pass directly in a straight line, i. e., at a right angle to the face of the drum of the winch, and that, if placed around the bit, it comes onto the drum at an oblique angle, under which condition it will slip. According to the chief officer the line was placed around the fair lead, while plaintiff himself testified that it was around neither the bit nor the fair lead, but came directly to the drum through a chock, which is an upright iron loop fastened to the edge of the deck and through which the line passes when being brought on board the ship. He further testified that he had nothing to do with the rigging of the line. When the above arrangement had been completed, the chief officer, as he testified, turned the throttle of the steam winch and the drum commenced to revolve. He stepped to the rail of the ship in order to observe the position of the line, and gave an order to heave in. To exert any pull on the line it was necessary to create sufficient friction between it and the revolving drum, and this was effected by the seaman working with plaintiff, who was pulling upon the rope and dropping it by his side as it came around and off the drum.

Concerning his part in the operation, plaintiff testified that he had gone to the forecastle to call the men, and that when he came on deck the winch was running, but not fast enough to heave in the line, which at that time was not coming in; that he stepped to the winch and opened the throttle wider, causing the drum to revolve more rapidly, and that not until this had been done did the line commence to come in. He also stated that he received no order to speed up the winch, and that it was not otherwise his duty to do so. The other seaman mentioned testified that the line was coming in slowly when plaintiff increased the speed in the manner stated. It appears without conflict that there was no slipping or surging of the line until the speed of the winch was increased. The surging commenced immediately thereafter, whereupon plaintiff, instead of stopping the winch or reducing its speed, attempted to straighten the line, placing his hands upon the rope about a foot from the drum, with his clothing in close proximity to the rope.

Plaintiff was an experienced seaman who had been employed as such on the ship for about three months, and had helped to heave in the mooring lines on numerous occasions.

As respects the condition of the rope, it was testified that it was old; that the strands in places were loose, “uncorded” as plaintiff described them. He also testified that this was also the case in places along its whole length, and that he had seen and known of this condition for some time previous to the accident. According to another witness the line was chafed in places with loose pieces hanging from it. It was also testified by the latter witness that he had previously called the attention of the ship's officer to the condition.

The action was based upon an Act of Congress known as the Jones Act, which provides in part: “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. * * *” Seamen's Act, March 4, 1915, c. 153, § 20, 38 Stat. 1185, as amended by Jones Act, June 5, 1920, c. 250, § 33, 41 Stat. 1007, 46 USCA § 688. Under this act a seaman becomes entitled to the rights and remedies granted railway employees by the Federal Employers' Liability Act, which provides that every common carrier while engaged in commerce between any of the several states or territories, or between any of the states or territories and foreign nations, shall be liable to any person employed by such carrier in such commerce “for such injury or death 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 * * * appliances, machinery, * * * works, boats, wharves, or other equipment.” April 22, 1908, c. 149, § 1, 35 Stat. 65, 45 USCA § 51.

The contributory negligence of an employee does not bar a recovery in such cases (Chicago, R. I. & P. R. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 275, 64 L. Ed. 430), nor is the negligence of the employer conclusive on the question of the latter's liability. When an employee knows of a defect in the appliances used by him and appreciates the resulting danger, but continues in the employment without objection, or without obtaining from the employer an assurance of reparation, he assumes the risk even though it may arise from the employer's reach of duty, and such assumption of risk may be free from any suggestion of fault or negligence on the part of the employee. Seaboard, etc., Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1. But if an employee was obeying an order to do a particular thing in the doing of which he was injured, he does not assume the risk unless the danger is so obvious and imminent that an ordinarily prudent person would refuse obedience. 39 Cor. Jur., Master and Servant, § 1115, p. 894; Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 39 S. Ct. 435, 63 L. Ed. 853. It has also been held that the burden of proving that the employee assumed the risk rests upon the employer, Boin v. Spreckels Sugar Co., 155 Cal. 612, 102 P. 937; and, where the former was not familiar with the character or type of appliances he was using, and the risk from such use is not obvious or well known, there is no assumption of risk, Chamberlin v. Rylander (C. C. A.) 68 F.(2d) 362.

In the case at bar the plaintiff was an experienced seaman who, as stated, had been employed on the ship for some months. It is clear that he was familiar with the appliances being used, and it is not claimed that he was ignorant of the dangers, if any, due to the way the line was rigged. Notwithstanding this he continued in the employment, making no objection or complaint to the officer. He admits that he was not authorized generally to increase the head of steam, or directed on this occasion to do so. When he later stepped to the drum and undertook to adjust the line in order to prevent it from slipping, its frayed condition and the looseness of its strands were obvious and, as he testified, he was aware of this condition. Nor is it claimed that the accident was in any way due to the fact that the work was being done at night. Furthermore, it is not contended that he was directed by the officer to attempt to remedy the defect in the manner he described, and it is undisputed that the proper course under the circumstances was to have stopped or reduced the speed of the winch. These facts bring the case within the rule that, where the defect and risk are obvious, and the servant continues the employment without objection or without assurance of reparation, he assumes the risk.

Defendant complains of several instructions given at plaintiff's request upon the doctrine of the duty of the employer to furnish the seaman with a reasonably safe place to work, negligence, the assumption of risk, and the presumption that plaintiff exercised ordinary care for his own safety. In view of our conclusion that the risk of injury was under the circumstances assumed by the plaintiff, and that for that reason there can be no recovery, it will be unnecessary to consider these objections.

The judgment is reversed.

PER CURIAM.