49 Cal. App. 2d 268 | Cal. Ct. App. | 1942
Plaintiff commenced this action to recover damages for injuries resulting from the negligence of defendants in failing to furnish plaintiff a safe place in which to work on their fishing vessel, “Dauntless.” Defendants have appealed from a judgment in favor of plaintiff and from an order denying their motion for judgment notwithstanding the verdict.
At the time of his injury plaintiff, who was employed by defendants as a fisherman, was engaged in distributing ice in the hold of the “Dauntless,” which was moored to a dock in San Pedro harbor. Crushed ice from a crusher located
The action was brought under the provisions of the Jones Act (46 U. S. C. A., sec. 688; sec. 33 of the Merchant Marine Act), which provides that any seaman who is injured in the course of his employment may, at his election, maintain an action for damages at law, and that in such action all statutes of the United States modifying or extending the commonlaw right or remedy in eases of personal injury to railway employees shall apply. The alleged negligence of defendants consisted in the furnishing of an ice blower to be used by plaintiff with an unguarded aperture. Defendants contend that plaintiff was guilty of contributory negligence in crossing the ice in the hold when he could have walked around the hatch on the deck of the vessel.
Prior to the enactment of the Jones Act a vessel and her owner were liable under the general maritime law in the event a seaman became sick or was wounded in the service of the ship, whether through negligence or accidentally, to the extent of the seaman’s maintenance and cure, and were liable for injuries received by a seaman because of the unseaworthiness of the ship and her appliances. But a seaman could not recover for injuries sustained by the negligence of the master or any
It is contended by defendants that the federal courts have exclusive jurisdiction of the matter which is the subject of the present litigation, since, it is argued, the injury was occasioned by an alleged defective appliance appurtenant to the ship (i. e., because of the unseaworthiness of the vessel). Although plaintiff had the right to file an action in the federal courts, he was given the option in the Jones Act of pursuing in the state courts a common law remedy based on negligence. Since plaintiff elected to proceed under the alternative afforded by the Jones Act, it is immaterial that he might have availed himself of the existing remedy by proceeding under the general maritime law. It has been held that in an action under the Jones Act the injured seaman may recover not only for injuries due to negligence but also for injuries caused by the defective condition of the vessel or appliances appurtenant thereto where such defect is due to negligence. (Stevens v. R. O’Brien & Co., 62 Fed. (2d) 632.) Defendants further contend that even if the action is properly based on the Jones Act the complaint fails to state a cause of action because it is not alleged that the injury was occasioned by the negligence of any officer, agent or employee of defendants. Such an allegation was unnecessary, for it is provided by section 1 of the Federal Employers’ Liability Act, which by reference is made applicable to actions under the Jones Act, that recovery may be had for injuries caused by any “defect or insufficiency, due to its (the carrier’s or
It is argued by defendants that if the state tribunals can exercise jurisdiction of the subject matter of the litigation the exclusive remedy is with the Industrial Accident Commission and not in the superior court. The rules for determining whether a particular case falls within the jurisdiction of the Industrial Accident Commission or a court administering the maritime law are set forth in Teahan v. Industrial Acc. Com., 210 Cal. 342, 346 [292 Pac. 120], as follows: “ (1) If an injury occurs on land, the maritime law does not operate. (2) If it occurs on navigable waters, the jurisdiction of admiralty is prima facie exclusive. (3) If an injury occurs on navigable waters and in the performance of a maritime contract, it is certainly within the exclusive jurisdiction of admiralty unless (a) the contract is of merely local concern; and (b) its performance has no direct effect upon navigation or commerce; and (e) the application of the state law ‘would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations. ’ (4) State workmen’s compensation laws, contractual in character, are applicable to maritime service on navigable waters, when, and only when, the service is within exceptions (a), (b) and (c) above. (5) If, however, the injury occurs on navigable waters, but in the performance of a nonmaritime contract, it is, at least prima facie, local and within the operation of state laws. If there are any exceptions to this rule, they are yet to be developed.” Plaintiff’s employment with defendants was not local but was such as to characterize him as a “seaman” within the meaning of the Jones Act. The accident occurred on navigable waters. Plaintiff was employed
The judgment must be reversed because of the errors of the trial court in giving the following instructions to the jury:
“Owner of vessel must supply safe place to work.
“A seaman injured at sea may recover indemnity, not only for injuries due to an unseaworthy vessel or defective equipment, but for injuries due to the negligence of one in authority over him, or to any defective condition of the vessel.
“The owners of a vessel are bound to furnish and maintain equipment and appliances reasonably free from defects, as well as reasonably proper and suitable for the special kind of work being done.
“A shipowner which equips its vessel with improper and dangerous appliances, even when proper ones cannot be obtained, does so at its own risk, and not at the risk of the seaman.”
Under 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. (Baltimore & Ohio S. W. R. Co. v. Carroll, 280 U. S. 491 [50 S. Ct. 182, 74 L. Ed. 566].) It has been held that there is no absolute responsibility on the part of an employer to furnish reasonably safe equipment, his duty being merely to exercise reasonable care to that end. (Seaboard A. L. R. Co. v. Horton, 233 U. S. 492 [34 S. Ct. 635, 58 L. Ed. 1062].) Upon receiving the instructions above set forth the jury might well have concluded that the employers were insurers of plaintiff’s safety. The jury was not informed that defendants could be freed from responsibility upon proof that they had exercised reasonable care in providing proper equipment on their vessel for the use of their employees. Clearly the instructions
With respect to the appeal from the order denying defendants’ motion for judgment notwithstanding the verdict, the record discloses substantial evidence which, had the jury been properly instructed, would have been sufficient to sustain a verdict in plaintiff’s favor.
The judgment is reversed. The order denying the motion for judgment notwithstanding the verdict is affirmed.
Moore, P. J., and McComb, J., concurred.
A petition for a rehearing was denied February 16, 1942, and appellants’ petition for a hearing by the Supreme Court was denied March 19, 1942.