Opinion
Argued January 9, 1929
Affirmed February 13, 1929
From Multnomah: GEORGE ROSSMAN, Judge.
For appellant there was a brief and oral argument by Mr. E.L. McDougal.
For respondent there was a brief over the name of Messrs. Davis Harris, with an oral argument by Mr. Paul R. Harris.
This is an action for damages for personal injuries sustained by plaintiff while in the defendant's employ and engaged as a longshoreman in loading the ship "Cacique" at Portland, Oregon. Plaintiff had judgment and defendant appeals.
The complaint alleges, and it is admitted, that the defendant is a stevedoring corporation, and that at the time of the alleged injury the plaintiff was in the employ of the defendant and engaged in loading the ship "Cacique" with lumber at Portland, Oregon. The complaint further alleges that while plaintiff was so engaged it became necessary to move to another place on the deck certain heavy irons called strong-backs or fore and afters, which are used to put across the hatch to support the hatch covers; that the customary way to move said strong-backs is by means of hoisting them by a steam winch; that defendant's immediate foreman or "boss" on the deck was one Gibson, who ordered plaintiff and another employee to move them by hand, and that as plaintiff was lifting his end of the strong-back from the place where it rested, it slipped or pitched forward and fell on plaintiff's fingers cutting off one finger and disabling permanently part of another so as to interfere with his work as a longshoreman, and to destroy permanently his capacity to play the violin which he frequently played for profit.
It is alleged that the strong-back in question weighed approximately 600 pounds and the acts or omissions constituting defendant's alleged negligence are as follows:
"(a) That although the customary, usual and safe way of shifting the position of strongbacks of the size and weight of the one in question is to employ the use of the ship's gear and tackle for such purpose, the defendant, disregarding its duty in the premises, carelessly and negligently carried on said work in a dangerous and unsafe manner in that the defendant ordered and directed the plaintiff and his working partner to carry the same by hand, thereby rendering the work which the plaintiff was engaged in extremely hazardous and greatly increasing the danger of carrying on said work.
"(b) That the defendant at said time and place was careless and negligent in that it carelessly and negligently failed to have and direct a reasonably sufficient number of men to assist in the carrying of said strongback which was of great size and weight as aforesaid, in that the defendant directed only the plaintiff and his working partner to carry the said strongback, when in the exercise of reasonable care and diligence at least four men should have been provided and directed to assist in the shifting of said strongback in order that the work might be carried on with reasonable safety to the plaintiff.
"(c) That said defendant at said time and place carelessly and negligently failed to exercise reasonable care to furnish plaintiff with a reasonably safe place in which to work."
Defendant answered, denying any negligence on its part and putting in issue all the allegations in the complaint to that effect, also the amount of damages claimed by plaintiff, and pleaded three affirmative defenses as follows:
(a) That plaintiff was an experienced longshoreman fully conversant with the manner of moving and stowing strong-backs, fully appreciated and knew all the dangers connected therewith, and assumed all the risks incident to that employment.
(b) That the plaintiff herein, at the time complained of, with another fellow-employee attempted to move a strong-back by hand and that, as the plaintiff herein was carrying said strong-back, he failed to exercise his senses and take proper precaution or care for his own safety with the result that plaintiff herein carelessly and negligently dropped said strongback and injured his fingers, and said acts of negligence on the part of the plaintiff contributed proximately to the cause of the accident herein complained of.
(c) That if there was any negligence, it was the negligence of plaintiff and his fellow servant.
These defenses being put in issue by the reply, the case came on for trial before a jury, and at the close of the evidence, the defendant made a motion for a directed verdict upon the following grounds:
First, that the plaintiff failed to state a cause of action against the defendant; second, that the plaintiff has failed to prove any of the allegations of negligence against defendant which are alleged as the proximate cause of the injuries complained of; third, that there is no testimony before the jury as to how the accident occurred; and fourth, that there is no proof of damages. The motion was denied and thereafter the jury returned a verdict in favor of plaintiff for the sum of $2,700 from which judgment defendant appeals. AFFIRMED.
The case at bar is governed by the Seamen's Act of June 5, 1920, Chapter 250, Section 33, Vol. 41, U.S. Statutes, 988, 1007 (amending Act of March 4, 1915, Section 20, 38 Stat. 1185, 46 U.S.C.A., Section 688), which took away from the employer the defense of contributory negligence and negligence of fellow-servants, but left intact the defense of assumption of risk, and this is the only question left for decision and the only question argued on this appeal. The evidence in the case is conflicting all along the line. Under the Constitution, we are not permitted to weigh contradictory evidence, but only to ascertain whether there was substantially any evidence to justify the jury in finding a verdict for plaintiff.
In effect, plaintiff's evidence is that he and a fellow workman were directed to move a strong-back weighing from 500 to 600 pounds from the position in which it was then and place it at another point several feet distant. The operation involved the lifting of the strong-back over a pipe to a height of about a foot and a half and carrying it to the place of deposit. The customary way of lifting a heavy strong-back was by means of steam and machinery, and when plaintiff asked if it should be done that way he and his companion were told that the machinery was in use and they were directed to move it by hand. In complying with this order, plaintiff took hold of the strong-back at one end and his fellow-workman stood at the other end and in some way, probably by a movement by the other workman, which may or may not have been negligent, the strong-back slipped toward plaintiff's fellow-workman so suddenly that plaintiff was unable to let go of his end which fell to the deck thereby inflicting the injuries complained of.
The later authorities are to the effect, where the danger is not so imminent and apparent, that injury must almost necessarily result from obedience to an order, and, if the employee obeys the order and is injured, the master will not be permitted to defend himself on the ground that the employee ought not to have obeyed the order: Labatt's Master Servant, (2d ed.), Vol. 4, § 1365. To like effect are Shields v. W.R. Grace Co., 91 Or. 187 ( 179 P. 265); Van Duzen Gas Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 ( 55 N.E. 998); Coast S.S. Co. v. Brady, 8 Fed. 2d 16; Long v. Shirrod, 128 Wn. 258 ( 222 P. 482).
The jury were the judges as to whether the order of Gibson to move the strong-back by hand was an improper order, which the result indicates was not a safe way, rather than by means of machinery, which was an indisputably safe method. In other words, they were the judges of the fact as to whether it was a negligent order and, while the testimony as to these two facts was very conflicting, we have no right to interfere with or reverse the jury's conclusion. The jury were also the judges as to whether or not the danger of moving the strong-back by hand was so imminent and apparent as to have required the plaintiff, under the circumstances, to disobey the order, or take upon himself the consequences of complying with it. We therefore conclude that there was sufficient evidence to take the case to the jury, and that there was no error committed in denying defendant's motion for a nonsuit and a directed verdict.
In discussing this phase of the case, we have thus far waived the fact that defendant's motion for a directed verdict does not include assumption of risk as one of the grounds of the motion, although that fact alone would have been conclusive against defendant on this appeal, as we have frequently held that a motion for nonsuit or a directed verdict must specify the grounds of the motion. A motion for a directed verdict on the ground that there is not evidence sufficient to go to the jury is governed by the same rules as a motion for an involuntary nonsuit: Huber v. Miller, 41 Or. 103 ( 68 P. 400); Merrill v. Missouri Bridge Iron Co., 69 Or. 585 ( 140 P. 439); Caldwell Banking T. Co. v. Porter, 52 Or. 318 ( 95 P. 1, 97 P. 541); Meier v. Northern Pacific Ry. Co., 51 Or. 69 ( 93 P. 691); Robertson v. State Industrial Accident Com., 114 Or. 394 ( 235 P. 684); Mercer v. Parker, 124 Or. 89 ( 262 P. 948).
So, in any event, the judgment should be affirmed and it is so ordered. AFFIRMED.
COSHOW, C.J., and RAND and BELT, JJ., concur.