McEachran v. Rothschild Company , 135 Wash. 260 ( 1925 )

This is an appeal from a judgment entered in favor of the respondent, McEachran, against the appellant, Rothschild Company, Incorporated, in an action brought to recover for personal injuries.

To an understanding of the controversy, a general outline of the facts is necessary. The steamship Italy Maru is employed by its charterers in the lumber carrying trade between the ports of the state of Washington and the ports of Japan and China. Sometime prior to February 11, 1922, the vessel was brought to the dock of the Port of Tacoma for the purpose of taking on a cargo of lumber. The lumber consigned for transport on the vessel belonged to different consignors and was consigned to different ports of the countries named. To facilitate the discharge of the cargo when the vessel reached the port to which a particular part of the cargo was consigned, and that the vessel might not be rendered unseaworthy when a part of the cargo was discharged, it was necessary to distribute over the vessel the lumber of each several consignor, and necessary that each consignment have upon it a distinguishing mark. The charterers employed the appellant, a stevedoring corporation, to load the lumber onto the vessel. They also employed the respondent as a checker; his duties being to assist the person acting as supercargo to keep track of the lumber as it was stored in the various compartments of the vessel. In the performance of his duties, the respondent was required to alternate between the vessel and the dock, having no fixed times at either place, the exigency of the particular duty he was required at the moment to perform governing his movements.

The respondent received the injury for which he recovered while on a railroad car spotted on the dock alongside the vessel. He was on the car for the purpose of counting and marking pieces of timber then being carried in sling loads from the car to the vessel. A loading boom had been extended from the vessel over the middle of the car, and a fall line was stretched from a winch on the vessel to the bed of the car, through blocks, one of which was at the upper end of the boom. After a sling load was made up, the line was hitched to the sling and the load hoisted to the end of the boom by power from the winch, from whence, by aid of another winch, it was carried over a hatchway of the vessel and lowered into the hold. The particular load causing the injury was taken from an end of the car. This caused a diagonal pull on the fall line. After the load had been prepared in the usual manner, the fall line hitched thereto, and the respondent had completed his counting and marking, a signal was given the winchman to hoist the load. The respondent in the meantime walked to the opposite end of the car. He had no more than reached it and turned around when he was struck with great force by a flying piece of timber. It seems that the load was not free to move when the strain was put upon the line by the winchman, a fact not observed by the employee of the appellant whose duty it was to watch it and see that it was free from obstruction. As the winchman increased the strain upon it, it loosened suddenly and swung rapidly in the direction of the pull. In so swinging it struck a piece of timber, hurling it against the respondent.

The appellant's first assignment is that the court erred in refusing to sustain some one or more of its challenges questioning the respondent's right of recovery. Under this head it contends for a number of distinct propositions, the first of which is that the respondent has no right of action against the appellant because of the provisions of the workmen's compensation act. In noticing the contention of the appellant under this head, it is unnecessary to set forth in detail the specific provisions of the act mentioned. It is sufficient to say that it abolishes the common-law remedy of an employee against his employer for an injury received in a hazardous employment, and relegates the employee to another source for relief. In so far as the exclusive jurisdiction of the state over such employments is concerned, the act is effective to accomplish its purpose; it has withstood all attacks made upon it in both the state and the Federal courts. But at the time of the enactment of the statute there existed within the state, and now exist therein, hazardous employments over which the state has not exclusive jurisdiction; employments over which a paramount jurisdiction has control and over which it has enacted its own laws governing the rights and remedies of employer and employee engaged therein. The most dominant of these are railroad companies engaged in both interstate and intrastate commerce, and employments of a maritime nature. Concerning the first, the state law can operate only where the business is wholly intrastate; and concerning the second, only where the work is performed entirely upon the shore.

There is, however, an intermediate class of employees whose status is not definitely determined by the statute; such as railroad employees whose work is of both an interstate and intrastate nature, and employees in maritime pursuits whose work requires them to alternate between the shore and navigable waters. As to the first of these, this court has held that they are not within the purview of the act (State v. PostalTelegraph-Cable Co., 101 Wash. 630, 172 P. 902; Spokane Inland Empire R. Co. v. Wilson, 104 Wash. 171, 176 P. 34); and as to the second, it has held that they are within the purview of the act only in so far as their work was performed wholly upon the shore. Puget Sound Bridge Dredging Co. v. Industrial Ins.Comm., 105 Wash. 272, 177 P. 788. The indefinite nature of the status of these employees led to a number of amendments to the original act, the last of which, commonly known as the railroad and maritime amendments, was enacted at the legislative session of 1919 (Laws of 1919, p. 134; Rem. Comp. Stat., §§ 7693, 7694, 7695). These read as follows (quoting from the compiled statutes):

"§ 7693. Inasmuch as it has proved impossible in the case of employees engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce, and in maintenance and construction of their equipment, to separate and distinguish the connection of such employees with interstate or foreign commerce from their connection with intrastate commerce, and such employees have, in fact, received no compensation under this act, the provisions of this act shall not apply to work performed in the maintenance and operation of such railroads or performed in the maintenance or construction of their equipment, or to the employees engaged therein, but nothing herein shall be construed as excluding from the operation of this act railroad construction work, or the employees engaged thereon: Provided, however, that common carriers by railroad engaged in such interstate or foreign commerce and in intrastate commerce shall, in all cases where liability does not exist under the laws of the United States, be liable in damages to any person suffering injury while employed by such carrier, or in case of the death of such employee to his surviving wife and child, or children, and if no surviving wife and child or children, then to the parents, sisters, or minor brothers, residents of the United States at the time of such death, and who were dependent upon such deceased for support, to the same extent and subject to the same limitations as the liability now existing, or hereafter created, by the laws of the United States governing recoveries by railroad employees injured while engaged in interstate commerce:. . ."

"§ 7694. The provisions of this act shall apply to employers and workmen engaged in maritime works or occupations only in cases where and to the extent that the pay-roll of such workmen may and shall be clearly separable and distinguishable from the payroll of workmen employed under circumstances in which a liability now exists or may hereafter exist in the courts of admiralty of the United States: Provided, that as to workmen whose payroll is not so clearly separable and distinguishable, the employer shall in all cases be liable in damages for injuries to the same extent and under the same circumstances as is specified in the case of railroads in the first proviso of section 7693."

"§ 7695. The provisions of this act shall apply to employers and workmen (other than railways and their workmen) engaged in intrastate and also in interstate or foreign commerce, for whom a rule of liability or method of compensation now exists under or may hereafter be established by the congress of the United States, only to the extent that the pay-roll of such workmen may and shall be clearly separable and distinguishable from the pay-roll of workmen engaged in interstate or foreign commerce: Provided, that as to workmen whose pay-roll is not so clearly separable and distinguishable, the employer shall in all cases be liable in damages for injuries to the same extent and under the same circumstances as is specified in the case of railroads in the first proviso of section 7693."

In the case before us, we are, of course, primarily concerned with the meaning of the second of the sections quoted. It seems to have been the interpretation of the court below that the compensation act would apply to a workman whose work took him alternately between the shore and the navigable water, if the payroll of such workman while on shore was clearly separable and distinguishable from his payroll while working on navigable water, and it left it for the jury to say whether the payroll of the respondent in this instance while working on shore was so clearly separable and distinguishable from his payroll while working on the vessel involved in the controversy. Indeed, we are advised by the record that this is the construction put upon the act by the board whose duty it is to enforce the provisions of the workmen's compensation act; although, as we are further advised, that board does not require the time of the work to be kept with accuracy, but compromises "on a fifty-fifty basis"; meaning, evidently, that it is fair to assume that such a workman is engaged, on an average, one-half of his time on shore and one-half on navigable waters.

But we cannot think the foregoing a correct interpretation of the act. Its language, it must be conceded, is obscure when considered without reference to extrinsic matters, but much of this obscurity vanishes when the language is considered with reference to the known facts to which it was intended to apply. It is a matter of common knowledge, and here shown by the record, that, in loading or unloading a freight-carrying vessel, certain of the workmen engaged therein work wholly upon the shore and that certain others work wholly upon the vessel. It is settled law that the first are amenable to state legislation, and for injuries suffered while so engaged must seek compensation in the remedy the state affords. It is equally well settled law that the second class is not so amenable, that their work is wholly maritime, and the remedy afforded them for injuries is that provided by the law maritime. As to these two classes of workmen, the payroll of the first class, in the language of the statute, "may and shall be clearly separable and distinguishable from the payroll of workmen employed under circumstances in which liability now exists, or which may hereafter exist, in the courts of admiralty of the United States." But it is manifest that workmen of the third or intermediate class, those whose work partakes of the nature of both of the other classes, are not thus clearly separable and distinguishable from the payroll of the workmen for whose injuries the remedy exists in the courts of admiralty. On the contrary, for certain of the work the payroll must from the nature of the case be included therein. The statute does not provide for a splitting of time, nor does it provide for a separate payroll for each individual. The language is general. If the payroll of the particular workman is not clearly separable or distinguishable from the payroll of the maritime class of workers, he must be included with them. Moreover, the statute had a purpose. This purpose was to fix with definiteness the status of the several workmen engaged in enterprises of this kind. Since for want of power it could not relegate workmen engaged in work of this class to its compensation act, it had either to provide for a splitting of time, or exempt the workman entirely. The language it used in expressing its purpose, when considered with the evil it sought to remedy, convinces us that it chose the latter alternative; that it meant to relegate workmen employed as the respondent was employed to the remedy afforded by the maritime law for any injury received during the course of the employment.

The second contention under this head is that the evidence is insufficient to justify a finding of negligence on the part of the appellant. But, in our opinion, it is sufficient in this regard. The cause of the accident and manner in which it occurred, we have hereinbefore stated. To put a strain on the fall line with the sling load lodged in its then position, considered in connection with the surroundings, made the question of negligence one for the jury. It must be remembered that the respondent was not the fellow servant of the workmen doing the actual work of loading the vessel. He was not in the employ of the same master, nor was he engaged in the actual work of loading. Nor was he a trespasser on the car then being unloaded. He was there in the performance of work which made it necessary for him to be there, and his presence at the place was with the implied, if not the actual, consent of the appellant. The appellant, therefore, owed the duty of exercising reasonable care for his safety, its servants were its agents for that purpose, and their neglect was the neglect of the appellant. He was not in a situation where he would know the load had become lodged, and if he knew generally the dangers attending a strain on the load in its then condition, he did not know that the danger was then imminent. It was the duty of the appellant to warn him of the fact, and the neglect of that duty was negligence.

The next contention is that the respondent was guilty of contributory negligence, but this also was at most a question for the jury, and the court submitted the question to them. The place at which he stationed himself was safe under all ordinary and usual conditions, and he was not bound, as matter of law, to anticipate that he would not be warned of the unusual.

Of the errors thought to require a new trial, the first is the refusal of the court to give certain requested instructions. These are long, and, as they apply to the facts of the particular case, it would add nothing to the general stock of knowledge to set them forth and discuss them minutely. It is sufficient to say that some of them are of doubtful applicability, and that in so far as they are material they are covered by the instructions given by the court. Furthermore, we have examined the instructions given as a whole, and find them clear and concise, that they cover all of the issues, and that they contain an impartial statement of the law applicable to all of the issues. In our opinion, the appellant did not suffer for want of sufficient instructions to the jury.

The court gave the following instruction, to which exception was taken:

"Contributory negligence is the want of ordinary care on the part of a plaintiff who is seeking to recover from a defendant for injury or loss and must be such negligence as contributes to the happening of the injury or loss, and it must be proved by the one alleging contributory negligence."

It is objected to this that it assumes that contributory negligence must be established by evidence introduced by the party pleading it, whereas the rule is that contributory negligence may be established by evidence introduced by either party to the cause, the only limitation being that the evidence must preponderate in favor of the party who relies upon the plea. The same question was before us in the recent case of Brammer v. Percival, 133 Wash. 126,233 P. 311, wherein we held that the giving of an instruction couched in the exact language of this one did not constitute reversible error. We are satisfied with the rule there announced and think we need not add to the reasons there given for the conclusion. It is proper, however, to say that in this case the court also gave the additional instruction therein quoted.

Error is assigned on the refusal of the court to sustain the objection of the appellant to a hypothetical question propounded by the respondent to one of his expert medical witnesses. The objection was based on the ground that the facts assumed in the question were not in harmony with the facts shown by the evidence. The question propounded, it may be conceded, was not in its recitals as full as it could have been made, since it contained references to the testimony of other witnesses and references to matters which came to the knowledge of the witness from his own examinations and observations, but we cannot conclude it reversible error nevertheless. It was not objected to on the ground that it was not complete in itself, and reading it in the light of the references, it was a fair summary of the facts which the respondent's testimony tended to prove. Hypothetical questions may properly be based on the testimony of the party proposing them. State v. Underwood, 35 Wash. 558,77 P. 863; Hanstad v. Canadian Pac. R. Co., 44 Wash. 505,87 P. 832; Dunkin v. Hoquiam, 56 Wash. 47, 105 P. 149; Griggsv. Wayne, 100 Wash. 459, 171 P. 230.

Moreover, as was noted in the last cited case, the appellant was at liberty to bring to the attention of the witness the evidence in the record which opposed the evidence on which the respondent relied and take his opinion on the assumption that the facts are as such testimony indicated, or inquire whether his opinion would be the same were the facts as such testimony tended to show. Ordinarily, this is the only remedy where there is a dispute in the testimony, and an examination of the record shows that the appellant in this instance availed itself of the privilege.

The verdict of the jury was for $35,000, and for this sum a judgment was entered. The appellant complains that the amount awarded is excessive. The respondent was unquestionably severely injured by the accident, and some of the injuries, apart from the one presently to be mentioned, are of a permanent character. But they are not of such a character as to prohibit the respondent from engaging in all gainful callings, and do not, in our opinion, justify the very large verdict which the jury returned. But the evidence shows that, in the November following the February in which the accident happened, the respondent developed a heart-block which possibly utterly incapacitates him from pursuing any gainful calling. A heart-block is described as a condition in which the ventricular systole does not always follow the auricular; every other beat may be lost, or every third, or the failure of the ventricular may be irregular. It was given in testimony by the medical witnesses that, while the pulsation of the heart in normal persons ranged between 60 and 80 to the minute, the pulsations of the respondent's heart ranged from 26 to 32. He is subject to fainting spells, and cannot safely walk the streets without an attendant. All of the medical witnesses agreed that the respondent's condition was serious, lending no hope of actual cure and not much of alleviation, and all agreed that the condition either could be caused, or, if latent, could be rendered acute by the injury.

In the light of these conditions, we do not feel that we would be warranted in interfering with the verdict. It is indeed large, but the right of trial by jury is a mandate of the constitution, and, while the court may, in the exercise of its discretion, if it deems the verdict excessive, or that it was rendered under the influence of passion and prejudice, set it aside and grant a new trial, or, what is the same thing, give the plaintiff an opportunity to accept a lesser sum than the amount of the verdict or submit to a new trial, it cannot of itself determine the amount of the recovery. A jury, therefore, must be the final arbiter, and we feel that there is but little reason for concluding that another jury would return a lesser amount, and that it would thus be an abuse of discretion to direct a new trial for this cause.

The judgment is affirmed.

TOLMAN, C.J., HOLCOMB, and MITCHELL, JJ., concur.