Spencer v. Beadle Steamship Co.

SHENK, J. The plaintiff brought this action under the provisions of section 33 of the Merchant Marine Act of 1920 (46 U. S. C. A., sec. 688), called the Jones Act, against Beadle Steamship Company, Ltd., and George S. Beadle, for damages for personal injuries sustained when he fell through an open hold of the steamer ‘1 Fort Bragg. ’’ A judgment of non-suit was entered as to the steamship company. The jury returned a verdict for the plaintiff in the sum of $10,000 which, on denying the motion for a new trial, the court reduced to $7,000. From the judgment entered on the verdict the defendant, George S. Beadle, has appealed.

The main contention on the appeal is that the court erred prejudicially in refusing to instruct the jury on the question of assumption of risk. The “Fort Bragg” was a single-ended vessel engaged in the coastwise trade. The plaintiff was employed as a seaman on the vessel. On the particular voyage in question timbers 52 feet long were piled lengthwise [315]of the deck, on the port and starboard side, to a height of about ten feet above the deck. Between this lumber and the hatch coamings there was a space about forty inches wide, and about forty-five feet in length, the forty-five feet being the distance between two large tanks fore and aft of the hatch. At Coos Bay a quantity of 1x12’s and 2x3’s was loaded into the spaces so left on the port and starboard sides of the.hatch and between the two tanks, up to the top of the long timbers. No space was left between the load and the hatch coamings.

When the ship docked at Vallejo to take off cargo the. plaintiff was ordered to assist in unloading the lumber piled between the large timbers and tanks and the hatch coamings. While this lumber was being unloaded the hatch covers were off. The 'plaintiff and another were preparing a load of lumber to be swung ashore, about six or eight feet above the hatch coamings. While the plaintiff was attempting to place a cargo sling around a slingload of lumber, he fell into the hold, a distance of about eighteen feet, and was seriously injured.

The plaintiff alleged the defendants’ negligence in the manner of loading the lumber between the long timbers and the hatch coamings, and the negligent failure of the defendants in furnishing to the plaintiff a reasonably safe place to work. The defendants pleaded affirmatively assumption of risk and contributory negligence.

The trial court refused to give the instructions requested by the defendant on the question of assumption of risk. The question is whether under the facts this defense was available to the defendant and the failure to instruct the jury thereon constituted prejudicial error.