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District Court of Appeal, Fourth District, California.


Civ. 3920.

Decided: July 29, 1949

Lasher B. Gallagher, Los Angeles, for appellant. Harold P. Lasher, Don L. Yale, San Diego, for respondent.

This is an appeal from a judgment in favor of plaintiff in an action for damages. Plaintiff is the surviving widow and administratrix of the estate of James Louis Rouchleau, also known as Jim L. Rouchleau, and as such administratrix commenced this action against Guy H. Silva, owner of a fishing vessel known as the Emma R. S., for damages for fatal injuries sustained by Jim L. Rouchleau when he fell from a plank on the vessel and into an empty ‘fish hold.’

The cause was filed pursuant to what is commonly known as the Jones Act, 46 U.S.C.A. § 688, which provides that in the case of death of any seaman as the result of personal injuries suffered in the course of his employment, the personal representative of such seaman may maintain an action for damages * * * and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. The statutes referred to are the sections of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Section 51 provides in substance, paraphrased to fit a maritime case, that the employer of a seaman shall be liable in damages to the personal representative of such seaman, for the benefit of the surviving widow and children of such seaman, in the event that his death results in whole or in part from the negligence of any of the employer's agents or employees or by reason of any defect or insufficiency, due to the employer's neglect, in his appliances, boats or other equipment.

The ‘Emma R. S.’ was a tuna boat. It left San Diego on or about October 4, 1945, on a commercial fishing trip off the coast of Mexico. The decedent, James L. Rouchleau, was employed as a seamen. The crew members were to be paid on a share basis. The defendant was master of the vessel and while on the trip he sustained a severe injury to one of his fingers and it was necessary that he be taken by plane to San Diego for medical treatment. About four hours after the injury and while waiting for the plane to arrive, defendant and all the members of the crew signed a ‘paper’ authorizing the decedent to take command of the vessel. It was agreed by decedent and the crew that the arrangement was satisfactory and it was understood that decedent was to be the acting captain in the absence of defendant Silva and until such time as he was physically able to go back on the boat.

On November 13, 1945, the Emma R. S. was returned to San Diego partially loaded with fish. The vessel was tied up at the Custom House for about an hour and then was docked by decedent at the Van Camp Dock and the fish were unloaded the following day. The arrangements for the unloading were made by decedent and the operations were in his charge and performed under his directions. Defendant came aboard the boat late in the afternoon of November 14, 1945, just after the fish had been unloaded, and observed decedent on top of the biat tank ‘performing the necessary work involved after the unloading had been completed.’ At that time one of the members of the crew wished to talk with defendant personally and the two men went into the pilot house where they engaged in conversation when they were informed that decedent had been injured.

At the time of the accident Jim Rouchleau and a man named Anderson were on top of the bait tank washing up the debris, ‘all the slime and stuff’ off the top of the bait tank. Rouchleau had rubber hip boots on and stepped up onto a plank extending from the bait box to the raised deck forward when he fell, sustaining injuries which resulted in his death two days later.

Plaintiff's contention is that the decedant's injuries were proximately caused by the negligence of the defendant in providing and maintaining the plank from or over which decedent fell.

The evidence is that the plank in question was about four feet long, twelve inches wide and three inches thick. It had cleats on the bottom side to hold it between the bait tank and the raised deck, which deck was about twelve inches higher than the bait box. This plank was movable and it was necessary that it be removed to unload the fish, after which the plank was intended to be put back in its original place adjoining a skiff which was kept on the raised deck, and close to and adjoining a net box also on the raised deck, all as shown in defendant's exhibit ‘B’.

When the skiff was in place it extended part way across the opening between the bait box and the raised deck and could be used as a railing while crossing on the plank here involved. The plank was used as a ‘cat walk’ when the equipment was all in place, including the skiff, and was not placed on the boat for the purpose of being used during the unloading operations. Its principal use was to enable the captain to get to the bait tank quickly when fish were being caught. A six foot ladder was maintained and kept on the ‘after end’ of the bait tank with four or five steps by which members of the crew could get down to the main deck from the top of the tank. In order to get to the top of the tank from the raised deck, without using the plank, it was necessary to go down a companionway or stairway onto the main deck and up the six foot ladder.

At the time the defendant came on board the boat at the dock, he immediately went to the end of the raised deck, looked down into the well and saw that it was empty and completely unloaded. He did not remember seeing the ‘plank’ at all, it was not ‘in place’ and defendant did not know where it was.

Plaintiff's witness, Bryson, was standing on the raised deck at the time of the accident and saw the ‘plank’ in the position shown in plaintiff's exhibit #5. In this connection, an examination of the two photographs, plaintiff's exhibit #5 and defendant's exhibit ‘B’ shows that at the time of the accident the plank was not in its usual or intended place but had been placed approximately two feet away from the net box which it adjoined when in place. Mr. Bryson testified that he saw the decedent and another man ‘washing down with a hose and scrubbing the top of the bait boxes;’ that he saw Rouchleau leave the bait tank and that ‘he stepped up on this plank with his right foot, a very short stride, and was just raising the left to go up on it when all of a sudden went overboard, down the well. It happened so quickly that it was almost impossible to see all of the details;’ that the plank was smooth and wet as they had been washing it down. It was not covered, had no cleats on it except underneath and there was no railing within reach of it at the time of the accident.

There is no direct evidence as to who put the plank across the open space, or when it was done. Defendant did not see it when he came aboard, and since the cleaning up operations on the boat were under the direction and control of Rouchleau, he was responsible for its proper placement. It is quite probable that he placed the plank in the position it was in at the time of the accident.

Under the circumstances here shown we do not think there is any substantial evidence of negligence on the part of defendant Silva proximately causing the injuries and death of James L. Rouchleau.

The burden of proof in cases of this kind is upon plaintiff to prove that the defendant was negligent, and that such negligence was a proximate cause of the injury and liability cannot be predicated on mere speculation. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520; Eckenrode v. Pennsylvania R. R. Co., 3 Cir., 164 F.2d 996. ‘Negligence’, as used in the statute, is the violation by the owner of the boat of his duty to furnish his employees with a safe place to work and safe tools and appliances to work with. Bailey v. Central Vermont R. Co., 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444, 1447. There is no duty on the part of the defendant to anticipate the misuse of equipment or to guard against the consequences of misuse. Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239, 243.

It is also the rule that where an otherwise sufficient piece of equipment has been rendered insufficient and dangerous to an employee, the plaintiff must prove actual or constructive notice of the condition to the employer before he can recover damages. Matthews v. Southern Pacific Co., 15 Cal.App.2d 36, 42, 59 P.2d 220.

An employer is under a duty to use reasonable care to furnish a reasonably safe appliance in the event the employee is required to use such appliance for the purposes of his employment, and not otherwise. Albert v. McKay & Co., 174 Cal. 451, 454, 163 P. 666.

Under the provisions of the Jones Act an employer is not held absolutely responsible to furnish employees with a safe place in which to work but is only bound to exercise reasonable care to see that the place is reasonably safe. Vojkovich v. Ursich, 49 Cal.App.2d 268, 273, 121 P.2d 803.

There is no evidence that Rouchleau was required to use the plank, from which he fell, for the purpose of performing any duty. Defendant had furnished a fixed and permanent appliance consisting of a ladder attached to the after end of the bait tank down which Rouchleau could easily and safely have gone to the main deck. If he was required to be on the raised deck there was a stairway leading up to it from the main deck. The evidence is that the plank was not in its usual place and was not being used for its intended purpose. The plank was to be used as a ‘cat walk’ only when the boat equipment was all in place and that equipment included the small skiff, which when in place was used as a hand rail. If as is here apparent the deceased was using the plank in an unauthorized, unnecessary, careless and improper manner, without the knowledge of defendant, there can be no liability on the part of the owner of the vessel. 56 C.J.S., Master and Servant, § 251, p. 1005. Moreover, the evidence is that decedent was master or captain of the vessel at the time of the accident. He was general agent for its owner in all matters concerning the vessel. Harbors & Navigation Code, Sec. 810. He is appointed by and holds his appointment at the pleasure of the owner. Harbors & Navigation Code, Sec. 800. While the owner came aboard a few minutes before the accident, there is nothing in the record to indicate that he was acting as master, and no indication that he in any way directed the work then being done. Rouchleau as master could have prohibited the use of the plank for any purpose. He had authority to cover the plank, nail cleats on it, or, if necessary, to build a railing on it. He was in full charge of the unloading operations and the replacing of all equipment. The negligence ws his and defendant owner can not be held liable therefor. Duffy v. Hobbs, Wall & Co., 166 Cal. 210, 214, 135 P. 1093, L.R.A.1916F, 806. As was said in 35 Am.Jur., page 615:

‘It is obvious that the rule imposing liability on employers for not providing safe places to work can have only a modified application, if, indeed, any at all, where the employee who is injured is himself required to make his place safe or is engaged in putting it in proper repair or is the agent through whom the employer undertakes to see that the place is kept in good repair.’

Since our conclusion is that plaintiff has failed to establish liability for negligence on the part of the owner by substantial evidence, Showalter v. Western Pac. R. R. Co., 16 Cal.2d 460, 471, 106 P.2d 895, it is unnecessary to decide the other points raised in this appeal.

Judgment reversed.

MUSSELL, Justice.

BARNARD, P. J., concurs.