Dewey v. A. F. Klaveness & Co.

379 P.2d 560, 233 Or. 515, 1963 Ore. LEXIS 303

• Court: Oregon Supreme Court
• Decided: March 13, 1963
• Status: Published

Opinions

SLOAN, J.

Plaintiff, a longshoreman, was injured while working aboard the vessel Bougainville. He brought this action against the owner of the vessel. The case was tried to a jury. However, both parties moved for a directed verdict. The court dismissed the jury and entered findings and judgment in favor of plaintiff. Defendant appeals.

The appeal has been argued three times. The last argument was based on the questions discussed in the concurring opinion filed herewith. As there indicated, the court has also had the advantage of well prepared briefs of amici curiae. It requires no ultra-sensory perception to know that this case has been the subject of more than a considerable amount of' discussion within this court.

We have taken the statement of facts as..they were tersely stated in appellant’s brief:

“Plaintiff is a longshoreman. Defendant is the owner and operator of the motor vessel BOUGAINVILLE. On January 17, 1960, the ship was docked in Portland taking on cargo. Brady-Hamilton Stevedore Company was acting as an independent contracting master stevedore and was the employer of plaintiff and all of his co-workers, and was in exclusive control of the loading.

“Plaintiff and his co-workers were storing heavy rolls of paper in one of the vessel’s holds. The rolls weighed about 1800 pounds, and were moved into position by means of a three-wheeled hand truck.

“The paper was being stowed over a cargo of bagged flour. A flooring of dunnage had been placed over the flour by the longshoremen. On top of the dunnage the longshoremen placed ‘walking boards’ (sheets of plywood 4-feet square) so as to form a flooring or runway over which to roll the hand truck.

“As plaintiff and three of his co-workers were rolling a loaded hand truck over this flooring, the left front wheel of the hand truck broke through the walking boards and the dunnage underneath. No one was hurt by this.

“Plaintiff and his fellow longshoremen surveyed the situation and discussed possible means of getting the hand truck out of the hole. Five to ten minutes later they decided to manually lift the hand truck and its load of paper out of the hole.

“While lifting on the handle of the hand truck plaintiff strained the muscles in his rib cage.

“There were a total of eight longshoremen working in the area. After plaintiff was injured the hand truck and its load was removed from the hole by using more of the longshoremen to lift on the truck together with longshoremen pulling on a rope which was tied to the handle of the hand truck.

“The court below found that the flooring was insufficient (unseaworthy) and that defendant was negligent in this respect, and concluded that this was a proximate cause of plaintiff’s injury.”

Defendant concedes that the vessel was unseaworthy. The only assignment brought here was that the court erred in finding that “* * * the insufficient flooring was a proximate cause of plaintiff’s injury.”

The problem that has divided the court is whether this, and similar cases, should be decided within the more traditional concepts of proximate cause or should the court adopt the ideas expressed in the concurring opinion. Some of the majority believe that the doctrine of proximate cause, as it has become established in this state, is preferable to the theories expressed in the concurring opinion. Others of the majority believe that such a transition, if it is wise to be made at all and if it has enduring merit, should be woven into the trial practice by the evolutionary process that has historically prevented atrophy in the common law. But regardless of reason, the majority prefer to decide this case upon the issues presented to the trial court and in the original arguments here.

Defendant primarily rests its ease on Zickriek v. Cooke et al, 1953, 197 Or 87, 252 P2d 185. Defendant claims that Zickriek and this case are undistinguishable. We do not agree. In the Zickriek case the defendant’s negligence consisted of the failure to use sufficient binder chains to hold a load of logs on a trailer. After the load had been hauled a short distance from the loading area the logs broke loose from the bindings and caused the trailer to be upset. The plaintiff, Zickrick, came upon the scene and, as a volunteer, endeavored to help relieve the situation. In the process he was injured. Defendant, in the instant case, relies on that part of the Zickrick opinion that holds that the negligence of the defendant Cooke, in that case, had come to rest before Zickrick became an actor. What this defendant overlooks is that Zickrick was a volunteer. Zickrick was in no different situation than any other person who may have chanced along the road and participated in the clean up. The effect of the opinion in that case was to hold that defendant, when he negligently loaded the trailer, was not obliged to anticipate that the natural and probable result of his negligence would be to injure a stranger who might aid in a removal of the debris caused by the negligent loading.

In the instant case the relationship between the parties is distinctly different. A reasonable man could have anticipated that the “walking boards” provided by defendant would not support the loads that were intended to be used upon them. And it would follow as a natural and probable result that when a load did break through that those, including plaintiff, charged with the duty of putting the loads in place would use the available means at hand to remedy the fault. Accordingly defendant could or should have anticipated that one of the workmen could be injured as a result of its negligence. Further, and in contrast to the facts in the Zickriek case, the relationship between plaintiff and defendant was one in which defendant owed a duty “* * * to the plaintiff to conform to a standard of conduct.” Prosser, Law of Torts, (1955 2nd Ed), Chapter 9, § 47, 252. The evidence here supports the trial court’s findings and the judgment is affirmed.