Cresap v. Pacific Inland Navigation Co.

оfficer, facts and basis circumstances known to the requires. all that the law

We convinced the arrest was that the received. judgment affirmed. All Concur. 41599. En Banc.

[No. December 1970.] Joseph Respondent, Naviga E. Cresap, v. Pacific Inland Appellant.*

tion Company, Inc., (Raymond Conboy C. Brent Nevin Pozzi, J. Wilson counsel), appellant. & Atchison, Wynne Schaefer, Blair, Robert Schaefer, M. Hutchison & (Nathan Gray, J. Heath and Fredrickson & Heath, counsel), respondent. appealed judgment J. Plaintiff from en-

McGovern, tered verdict for the defendant. The Court Appeals, by less than a unanimous decision, reversed the (2 App. (1970)). court Wn. 469 P.2d 950 Defend-

*Reported in 478 P.2d 223. Supreme prosecuted appeal II-2,

ant under Rule then Appeal. Court Rules ‍‌​​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​‌​‌‌‌​​​‌​​​‌‌‌​‍on admiralty complaint pleaded in terms

Plaintiff’s during injuries damages him suffered recover grain employment of his aboard the defendant’s course unseaworthy. barge. alleged the vessel was Plaintiff that by Joseph Cresap employed February a E. was grain a from the hold man to unload master stevedore barge. oper- within his duties was the defendant’s Included placed of the of certain vacuum hoses within the hold ation conveyor barge grain deposit a the it onto to withdraw by upon system A ladder used the the dock. wooden located longshoremen plaintiff to enter and leave the and his fellow barge furnished the master stevedore of was holds the customarily purpose. used for that and was injured he fell from he when testified that was Plaintiff descending from the weather deck while he was the ladder compartment of hold. The into the deck a of the deep to have be 10 or 11 feet he fell was said to which “shiny, steel, slick”. The condition steel, weather a deck damp”. bottom of “a bit The time was described as at the upon the the steel deck the hold and rеsted the ladder approximately the top a foot above extended of the ladder coaming or line end of a was of the hatch. One %" 5/16" rung top end of the and the other a ladder attached to restraining deck onto the weather a bit welded secured to footings barge. on the ladder. no rubber There were of the plaintiff his fall from the ladder: described The got point ladder, I the a about As I started down barge. my of the even with the deck head was where top deck, and all at once the bottom is the That weight right sideways and the to the the laddеr went pull rolled over and I fell back; ladder it the me tried to off. longshore- eyewitness accident, to the no

There was plaintiff he working at that time said that with man plaintiff lying thump see at around to and turned heard “sitting He ladder was the ladder. said foot of top angled position to thе of the hatch . . tied . part opening loose on lower the ladder was and the [plain- he over . . had shifted where deck and been lying”. tiff] was assignments upon ap- principal of error which argued

peal predicated First, four number. con- erred it allowed the that the trial court when contributory negligence. comparative sider the issue no evidence Plaintiff insists that there was contributory negligence supported. finding of could be We find that the record indicates otherwise. Clyde plaintiff’s attending physician, Hutt,

Dr. B. testi- hospital immediately fied that he at a saw fоllowing said the accident. He that he then told: “That sitting directing [plaintiff] he fell on a ladder from—was loading ship injured of the hold of a and he fell and jury adopted testimony If himself”. as the correct accident, version it would have found using was the ladder in a manner than other which intended to bе was used. That evidence sufficient to was jury question comparative create a on the of issue contribu- tory negligence. assigns

Plaintiff next error to the refusal of the trial judicial Safety court to take notice of the federal and Regulations Longshoring, (1965). § Health 29 C.F.R. 1504 plaintiff’s prеsented Before counsel case, rested his he the copy regulations they court with a of the existed the at Cresap’s injury. time of Mr. also of court was advised support plaintiff’s proposition the authorities in of additionally, presented proposed and, was thereafter a with pertinent parts for the instruction recited the of regulations judicial sought. for which notice None- judicial theless, court trial declined take notice of regulations proposed and refused the instruction. We believe that the is entitled to a new trial for those reаsons. Register judi

“The of contents the Federal shall be cially § .” noticed . 44 1507. U.S.C. We believe that proper, appropriately ‍‌​​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​‌​‌‌‌​​​‌​​​‌‌‌​‍find mandate it to be in a observed large other number of state and hold that it courts should

566 acknowledged particularly here. And that is

have been true put possession copy here, of when, аs court is being may regulations considered in order that it of the against requested accuracy test the of the instruction regulations language regulation. copy of With opportun- afforded a court, before the each counsel full ity relevancy materiality regula- and of those to test the request an at bar and to instruction tions the case pertinent portions support of his thereof in client’s view case. Register made

The advent of the Federal has available indisputable an evidence of the courts accessible source knowledge regulations. Judicial the federal rules regulations published accepted. should be those rules question Certainly Wigmore his Professor answered own Register, Federal asked: the advent when he “Since regulations, publication of executive with its strict rules judicial capablе why may not all such be Wigmore, § they published?” 9 J. Evidence notice when are (3d 1940), see, v. Bell n. at 553.Also Sims Southern 2572 16 (1965); App. 363, 111 141 788 Co., Tel. & Tel. Ga. S.E.2d Lange Nelson-Ryan Flight Serv., 460, 259 108 Inc., Minn. v. App. (1961); McCredie, 1 Mortenson v. Ill. 2d N.W.2d (1954); Dickerman, De Armas 455, N.E.2d 840 App. 548, Cal. 2d 239 P.2d 65 pointed to the trial court counsel out

Plaintiff’s principles American in Provenza v. enunciated some (4th 1963), cert. Expоrt de Cir. Lines, Inc., 324 F.2d 660 (1964), 11 L. 2d 84 S. Ct. nied, Ed. 376 U.S. pleaded applicable Provenza, violation here. In Secretary by regulations of safety promulgated the the requested instruc refused a Labor, the court still trial specific jury put the the have before tion which would regulations in involved which were within thosе standards regula plead Although plaintiff here did not the case. sufficiently of the direct the attention tions, he did appropriate instruction requested an court to them and regula argued, not in the “it is As his counsel under them. binding is . . but it . is the owner it tions that regu- some of the of care” evidencе standard and that “the may just other to lations be shown like evidence indicate practice that is a certain safe or unsafe”. The trial court judicial regulations have should notice and taken jury requested by plaintiff: as instructed the regulations You are instructed that there are Federal dealing “Safety Long- Regulations with and Health shoring”. (29 1504). regulations provide CFR Those in part (A). as follows: “1504.25 There one in a shall be at least gang working safe and accessible ladder for each . hatch .” (C) Straight adequate strength suitably ladders of and shifting against slipping provided secured or as shall be

necessary where fixed re- hold ladders do not meet the quirements Paragraph (A) of this section. While a violation con- not unseaworthy, ship clusive evidence of the fact that the Vogel nonetheless it is relevant evidence such fact. (1966). Alaska Co., S.S. Wn.2d 419 P.2d 141 plaintiff’s requested given, Because instruction was not deprived right fully argue theory he was to his jury. requested case Without the instruction, he was point jury unable out to the ladder, secured, that the specifications Safety did not meet the set forth in the and Regulations Longshoring Health and that such failurе comply barge constituted evidence of the fact that the unseaworthy. given by ‍‌​​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​‌​‌‌‌​​​‌​​​‌‌‌​‍was Other instructions the trial general in court were nature and were not sufficient purpose. that Dabroe Co., v. Rhodes 392 P.2d Wn.2d plaintiff’s proposed faulty Nor instruction was because it safety regula- failеd to state the effect a violation of the properly tions. The was advised that should consider whole, as a these instructions and instructions ade- quately point: covered that No. 9

Instruction oper- contends that owned and unseaworthy defendant, was the lad- ated der on whiсh the attempting to walk use not secured no there was provided properly you If means to secure said ladder. descending and it find that the was not ladder that gave way secured and that reason injury you plaintiff, if and to the and further find caused I this unseaworthiness >as have condition сonstituted your you, then be for defined that term the verdict must plaintiff.

Instruction No. 11 barge you duty I to maintain the and instruct that the seaworthy appurtenances its ladders in a condition extends though ladder, A even used aboard the vessel. unseaworthy structurally sound, is if is unsecured it way reasonably not in such to be aboard the vessel suitable and purpose for the or use for fit to be used provided or intended. which argues that the trial court should have

Plaintiff also a matter of that defendant’s was unsea found as law agree. worthy. earlier, As indicated there was We do not presented had indicated that the evidence which sitting purpose it, or use on from the ladder while fallen Interpreting that was not intended. for which ladder light defendant, to the in most favorable upon deny plaintiff’s mo court the trial incumbent the issue unseaworthiness for a directed verdict tion Moyеr barge. 454 P.2d Clark, 75 Wn.2d See jury. one be decided The issue was interjected plaintiff’s attending physician The fact that coverage question case into the before of insurance likely jury retrial It not is not considered. again occur. an cause such event would cause judgment is reversed and the trial court trial. remanded for a new J., C. Hale, Rosellini, Hamilton, Finley,

Hunter, Tem., concur. Ryan, J. Pro JJ., and holding (dissenting) accord with am in J. Neill, —I Regulations “Safety and Health that the contents Register, are to appear Longshoring,” Federal in the judicially violation those noticed, аnd that be on the not conclusive unseaworthiness, is evidence disagree majority’s conclusion However, I with the issue. given prejudicially to effectuate failed that the instructions points. these adequately

Instruction Nos. 9 advised the the same in- substantive elements as' contained рroposed plaintiff. in- structions Those instructions jury seaworthiness, formed the the correct standard including legal improperly ladders, and of of an effect All is from the secured ladder. absent instructions given, compared requested ‍‌​​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​‌​‌‌‌​​​‌​​​‌‌‌​‍instructions, as is the with the jury safety regulations advice tо the that federal and health majority, requirements. in effect, set forth these The re- quires a trial court to include this information in instruc- disagree. tions. I comparison

A the contents the federal given with the elements contained in the instructions shows identity regulation (29 § virtual substance. The C.F.R. (1965)) “[T]here 1504.25 states: shall be at least one safe .(c). suitably and accessible ladder . . . . secured against shifting slipping Compare language or . . .” you with that of instruction “If Nos. 9 and 11. find . . . a ladder . . . was not secured and for that gave way (Instruction 9.) . . reason .” No. “. . duty seaworthy [The] maintain in ... a condition extends to ladders ... A ladder ... is unseaworthy if it is unsecured aboard the vessel in such a way reasonably as not to be and fit to be used for suitable (In- purpose provided or intended.” or use 11.) struction No. practice place regulations in

The better is to jury in the same manner as other thus before the assuming proper it is However, evidence. to use the judicial procedure, in notice with instruction view essentially 11 fact that instruction Nos. 9 and embodied treating elements, I see no basis for the failure to the same give requested as reversible error. The instructions jury is, tells the law without usuаl instruction what adding particular cases stated is derived from that the law reports particular sections of federal or state or from regulations. Sage,

statutes, rules or v. See State Idaho (1912). pointed 489, 126 P. We out in another context, give require judge “The law does not a trial reasons enough charges Cloherty a rule. It is if he the law.” (1914). only Griffiths, 634, 637, Wash. 144 P. 912 exceptions consequence are cases where violation party negligent statute or ordinance renders as a matter of E.g., (1967). see 60.01, law. 70.02 WPI The fact that such independent significance own, statute has its more and is permits than evidence such the distinction. Absent inde- pendent effect, or references statute other source are not suggested. E.g., 72.01, case, see WPI 72.02 In this majority safety regu- observes, violation of the federal merely effect, lations does not have evi- such dence.

Even if I were to concede that citations to sources in harm, instructions do no failure it does not follow that include such source error. Refer- information reversible sources, ence to or other statutes the violation nothing independent legal significance, doеs not have adds circumstances, In I to the substance the law stated. such any refusing error fail to see to include source references in the instructions. accept addi

Moreover, I am reluctant to as harmless the regula statute, references rule or tions of sourcе where the dispositive There is dan effect, tion has no as in this case. ger very nature of such additions. When the inherent in significant per only effect of se, law is not source logic In formal the device known citation rhetorical. argumentum playing upon prestige verecundiam, аd Logic Legal Tammelo, of Modern Outlines source. See needlessly in use in best, its instructions At misleading jects search for truth. element into the images created such additions worst, the At balance parties. may unduly prejudicial Further, one of be danger potential of a court that the refusal is the there naming may amount to others sources while to cite some evidence. comment

I would vacate the of the Court opinion ‍‌​​​​​‌​‌‌​‌‌‌​‌‌​​‌‌‌‌​​​‌‌‌‌​​‌​‌‌‌​​​‌​​​‌‌‌​‍Appeals affirm the trial court.

Sharp, J., J. Neill, concurs with 40809, 40810. En Banc. December

[Nos. 1970.] Respondent, Orange, State of Washington, v. Robert

Appellant.* *Reported in 478 P.2d 220.

Case Details

Case Name: Cresap v. Pacific Inland Navigation Co.

Court Name: Washington Supreme Court

Date Published: Dec 17, 1970

Citation: 478 P.2d 223

Docket Number: 41599

Court Abbreviation: Wash.