Davis v. Matson Navigation Co.

SALSMAN, J. Appellant brought this action against respondent to recover damages for personal injuries suffered by him when he slipped and fell on grease which was covered with sawdust while he was working as a longshoreman on the deck of respondent’s ship, the S. S. Hawaiian Packer. At trial he dismissed his claim based on negligence, and the action then proceeded on the theory that, at the time of injury, the vessel was unseaworthy and that this condition caused appellant’s injury and damage. Jury trial was waived. At the close of the evidence the trial judge found that (1) appellant fell while working on respondent’s ship, but that at the time of his fall the ship constituted a safe place to work and was a seaworthy vessel; (2) the fall caused appellant no disabling injury, and (3) the fall was caused solely by appellant himself. Pursuant to these findings judgment was entered for respondent. The appeal challenges only the sufficiency of the evidence to support the trial court’s findings. Obviously, if any one of the findings is supported by substantial evidence the judgment must be affirmed.

Appellant, a " gang boss,” came aboard the S.S. Hawaiian Packer with his work crew on the night of February 24-25, 1963. He and his men, along with many other longshoremen, were engaged in loading the vessel. His crew was working at [28]hatch No. 1, nearest the how of the ship. The winch serving hatch No. 2, just aft of hatch No. 1, was leaking oil on the deck, and sawdust had been spread over the area to prevent the surface from becoming slippery. The size of the sawdust area is not clearly established by the evidence. One witness testified it extended out from the hatch 8 to 12 feet, “or more,” while another witness said “. . . about two or three feet. . . .” of the deck was covered with sawdust. There was evidence that it had been the practice of respondent over many years to treat such conditions by the application of sand or sawdust; that sawdust was readily available for that purpose, on board the ship and at dockside, and that it was the duty of gang bosses such as appellant to cover slippery substances on deck with sawdust.

Appellant testified that he was “walking fast” from hatch No.. 1 toward hatch No. 3, when he slipped and fell in the sawdust near hatch No. 2. He reported his fall at once, and was given a slip permitting him to visit a doctor. However, he did not see a doctor until three weeks after his fall, when he consulted Dr. Raphael complaining of pain in his shoulder, arm and back. The doctor advised him to stop working, to take physiotherapy treatments, and not to lift anything. Appellant, who had worked regularly since his fall, did not quit working, although for a time he took physiotherapy treatments. More than eight months after his fall he took his mandatory three-week vacation. After his vacation period expired he remained off work for about six weeks. Thereafter he worked steadily. He was working at the time of trial.