Petition for Writ of Certiorari — Dirk v. American President Lines, Ltd.

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In the :

Supreme Court of the United States

October Term, 1975

No. €5-1403

WILLIAM J. DIRK,

Petitioner,

vs.

AMERICAN PRESIDENT LINES, LTD.,

Respondent.

Petition for a Writ of Certiorari to the Court

of Appeal of the State of California,

First Appellate District, Division Two

EDWARD J. NILAND,

STANLEY A. IBLER, JR.,

111 West St. John Street,

San Jose, California 95113,

Telephone: (408) 298-5678,

Attorneys for Petitioner.

SPARTAN PRINTING CO., INC., SAN JOSE, CALIFORNIA

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TOPICAL INDEX

page

Opinion Below .............--:::ss:sccsssseesseseessesceseseesnessnensensenenseneness 2

Jurisdiction ..............-..:-sssssceseseseeesseeensenensesnsensneenenscnsenseneneeceneees 2

Question Presented for Review .........-.----::::::sesescsceerseeeeeeettess 2

Statutes Involved ................:cscccceecesecceseseeennenssecsceneneseneneenenseneeaes 3

Statement of the Case ...............---.-:-:scscseessseesseneeseenseneceseennnneneaes 4

Reasons for Granting the Writ ............-.-----::::-eeseeeeeeee 8

1.—Since this Court has already determined that evidentiary

sufficiency in the F.E.L.A./Jones Act cases is to be

tested by a federal standard, the decision of the Califor-

nia Court of Appeal, applying California's own. “sub-

stantial evidence” rule of evidentiary sufficiency, is in

direct and irreconcilable conflict with prior decisions

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APPENDICES

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Opinion of the Court of Appeal of the State of California

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i Bie TI acini Appendix B

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TABLE OF AUTHORITIES CITED

Cases

Cox v. Roth, 348 U.S. 297 (1955) ....----------------eeee 12

Gallick v. Baltimore & Ohio Railroad, 372 ULS. 108, (1963) 9

Gibson v. Elgin. Joliet & Eastern Railway Co., (7th Cir.

1957) 246 F. 2d 834, cert. den. 355 is. oy .._........ 16

Lavender v. Kern. 327 U.S. 645 (1946) ....---------------1-e 16

Philadelphia & Reading Railroad Co. v. Polk, 256 U.S. 332

TT 12

Rogers v. Missouri Pacific Railroad Company, 352 U.S.

500 (1957) ......--------c-c-n-censecneneseeesesnenenenensenes 2, 6, 8, 12, 15

Sentilles v. Inter-Caribbean Shipping Co., 361 U.S. 107

| NOUMRUISERSuSRSURIOTONNSONUNEO ect 10

Statutes

28 U.S.C., Section 1257(3) ....--------:s-csssesceseseeersseeeeseesenen titers 2

45 ULS.C., Section 51. ......-.-----------------css-sesesesensesensecenenenneneneenes 3

46 ULS.C., Section 688 .........--..-----------sesseesseersreeseteneentetete 3, 4

In the

Supreme Court of the United States

October Term, 1975

No.

WILLIAM J. DIRK,

Petitioner,

Vs.

AMERICAN PRESIDENT LINES, LTD.,

Respondent.

Petition for a Writ of Certiorari to the Court

of Appeal of the State of California,

First Appellate District, Division Two

Petitioner prays that a writ of certiorari issue to

review the judgment of the Court of Appeal of the

State of California, First Appellate District, Division

Two, entered in the above entitled case on December

2, 1975.

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Opinion Below

The opinion of the Court of Appeal of the State of

California, First Appellate District, Division Two is

unreported and is printed in Appendix A herto, infra,

pp. 1 through 18, inclusive.

Jurisdiction

The judgment of the Court of Appeal of the State

of California, First Appellate District, Division Two

(Appendix A) was entered on December 2, 1975. A

timely petition for rehearing by that Court was denied

on December 31, 1975 (Appendix B, infra) and there-

after a timely petition for a hearing in the Supreme

Court of the State of California was denied on Janu-

ary 28, 1976 (Appendix C, infra). The jurisdiction of

this Court is invoked under 28 U.S.C., Section 1257

(3).

Question Presented for Review

Whether a state court in a Jones Act Case, in test-

ing the sufficiency of the evidence to support a judg-

ment in favor of the plaintiff seaman, is bound by the

rule of evidentiary sufficiency enunciated by this Court

in Rogers v. Missouri Pacific Railroad Company, 352

U.S. 500 (1957), and related subsequent decisions of

this Court, or whether the state court may apply its

own, more stringent standard of evidentiary suffi-

ciency.

BLEED THROUGH

_

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Statutes Involved

The primary statutory provision involved is 46

U.S.C., Section 688, the Jones Act, which provides, in

pertinent part:

“Any seaman who shall suffer personal injury in

the course of his employment may, at his jacien,

maintain an action for damages at law, with the

right of trial by jury, and in such action all stat-

utes of the United States modifying or extending

the common law right or remedy in cases of per-

sonal injury to railway employees shall apply. . . i

By its terms, the Jones Act extends to seamen reme-

dies made available to railroad workers under the Fed-

eral Employers Liability Act, 45 U.S.C., Section 51,

which provides in pertinent part:

“Every common carrier by railroad while engaged

in... [interstate or foreign commerce] shall be

liable in damages to any person suffering injury

while he is employed by such carrier in such com-

merce .. . for such injury . . . resulting in whole

or in part from the negligence of any of the of-

ficers, agents, or employees of such carrier... .”

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Statement of the Case

In the proceeding below, petitioner, a merchant sea-

man, sought to recover, pursuant to the provisions of

the Jones Act (46 U.S.C., Section 688 et seq.) and the

general maritime law, damages for injuries sustained

by him in the course of his employment aboard the

respondent’s vessel, the S. S. President Roosevelt, al-

legedly as the result of the respondent’s negligence and

the unseaworthy condition of the vessel. More speci-

fically, petitioner contended that he had slipped while

descending a vertical, metal ladder which connected

the deck where petitioner’s place of employment was

located and the deck where the crew’s quarters were

located. Petitioner contended that this ladder was in a

slippery, unsafe condition for three mutually independ-

ent reasons: (1) the embossed metallic tread of the

ladder had been worn away to the point of invisibility,

(2) the ship’s officers had negligently failed to install

anti-skid treads on the ladder, and (3) members of the

ship’s crew had negligently tracked oil. from the deck

below the ladder up onto the ladder treads.

Following a trial on the merits, in the Superior

Court of the State of California, in and for the City

and County of San Francisco, the jury rendered a ver-

dict in favor of the petitioner and judgment was duly

entered thereon. Respondent did not appeal from the

judgment, but rather appealed to the Court of Appeal

of the State of California, First Appellate District,

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from the order of the trial court denying respondent’s

motions for a new trial and for judgment notwithstand-

ing the verdict.

The order denying the motion for new trial was a

non-appealable order, and the appeal therefrom was

dismissed by the Court of Appeal (Appendix A, p. 6,

footnote 1), and appellate review was restricted to a

review of the order denying respondent’s motion for

judgment notwithstanding the verdict. Thus, the sole

question presented for decision to the Court of Ap-

peal related to the sufficiency of the evidence to support

the verdict and judgment rendered below in favor of

the petitioner.

The Court of Appeal expressly disdained to make

any analysis of the evidence in terms of negligence or

unseaworthiness and restricted its inquiry’and analy-

sis to the issue of causation. In its opinion, the Court

of Appeal stated:

“in determining the sufficiency of the evidence

in this case, the sole issue is whether the defend-

ant’s [sic] fall was the result of the unsafe con-

dition of the ladder. If the evidence supports such

a finding, defendant concedes that the verdict

must be upheld on a theory of unseaworthiness

and that it is irrelevant whether the jury also

found that defendant was negligent... .” (Appen-

dix A, p. 7).

The Court of Appeal indicated that in testing the

evidentiary sufficiency in this case it was applying

the California standard (Appendix A, p. 6, footnote

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1). The Court observed that “a thorough review of the

evidence fails to disclose any tenable theory upon which

a jury could reasonably base a finding that plaintiff’s

fall was caused by the unsafe condition of the ladder

on defendant’s ship” (Appendix A, p. 8). The Court

then held that the evidence was not sufficient to sup-

port the judgment in favor of the petitioner and re-

versed the judgment with directions to the trial court

to enter judgment in favor of the respondent ship-

owner (Appendix A, p. 18).

Thereafter, petitioner filed a petition for a rehear-

ing by the Court of Appeal, in which petitioner pointed

out that in its evaluation of the evidentiary sufficiency,

the Court of Appeal had improperly failed to follow

the unique federal standard enunciated by this Court

in Rogers v. Missouri Pacific Railroad Co., 352 US.

500 (1957), by which standard evidentiary sufficiency

is to be tested in Jones Act cases. Petitioner further

pointed out that the record on appeal contained evi-

dence which would have permitted a jury reasonably to

infer that respondent’s negligence had played “any

part, however small” in causing petitioner’s injuries,

and that the evidence was thus sufficient under the

applicable federal standard to support the judgment

in petitioner’s favor. On December 31, 1975, the peti-

tion for a rehearing was denied (Appendix B).

7

Petitioner then filed a petition for a hearing by the

Supreme Court of the State of California, again urg-

ing that the Court of Appeal had erred in failing to

acknowledge or follow the applicable federal standard

in reviewing the evidentiary sufficiency in the case.

On January 28, 1976, the petition for hearing was

denied (Appendix C).

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Reasons for Granting the Writ

Since this Court has already determined that evi-

dentiary sufficiency in F.E.L.A./ Jones Act

Cases is to be tested by a federal standard, the

decision of the California Court of Appeal,

applying California’s own “substantial evi-

dence” rule of evidentiary sufficiency, is in

direct and irreconcilable conflict with prior

decisions of this Court.

In Rogers v. Missouri Pacific Railroad Co., 352 U.S.

500, (1957), supra, this Court clearly articulated the

standard by which evidentiary sufficiency in F.E.L.A./

Jones Act Cases is to be measured :

“Under ... [the F.E.L.A.] the test of a jury case

is simply whether the proofs justify with reason

the conclusion that employer negligence played

any part, even the slightest, in producing the in-

jury or death for which damages are sought. .. .

Judicial appraisal of the proofs to determine

whether a jury question is presented is narrowly

limited to the single inquiry whether, with rea-

son, the conclusion may be drawn that negligence

of the employer played any part at all in the in-

jury or death. Judges are to fix their sights pri-

marily to make that appraisal and, if that test is

met, are bound to find that a case for the jury is

made out whether or not the evidence allows the

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jury a choice of other probabilities. The statute

expressly imposes liability upon the employer to

ay damages for injury or death due ‘in whole or

in part’ to its negligence.” (352 U.S. 506-507, Em-

phasis by the Court.)

This Court has never departed from the Rogers

Rule. Gallick v. Baltimore & Ohio Railroad, 372 U.S.

108, (1963) is illustrative of the broad parameters

of that rule. In Gallick, plaintiff was walking along a

stretch of the defendant railroad’s right of way where,

for years, there had been a pool of stagnant water, in

and about which were dead and decayed rats and birds.

Insects had been seen on, over and above this pool.

While walking near the pool, the plaintiff experienced

a bite on his left leg. He grasped the spot and crushed

what appeared to be a large insect. The bite wound on

the plaintiff’s leg subsequently became infected, ulti-

mately necessitating the amputation of both plain-

tiff’s legs.

In response to special interrogatories, the jury in

Gallick found that there was a proximate causal rela-

tionship between the stagnant water, the carrion and

the plaintiff’s present physical condition. The jury also

found, however, it was not within the realm of reason-

able probability or foreseeability of the defendant to

appreciate this proximate causal relationship. The

trial court entered judgment for the plaintiff. The

State Court of Appeal reversed, holding that a directed

verdict for the defendant should have been granted

10

because the evidence was insufficient to support a judg-

ment in favor of the plaintiff. Specifically, the Court

of Appeal found that there was no direct evidence that

the unidentified insect came from the defendant’s stag-

nant pool, i.e., evidence which would have negated the

alternative possibilities that the insect had emanated

from the putrid mouth of a nearby river, or from weeds

or unsanitary places on property not owned or con-

trolled by the railroad. The Court of Appeal therefore

determined there was merely “a series of guesses and

speculations . . . a chain of causation too tenuous...

to support a conclusion of liability.” Accordingly, the

Court of Appeal reversed and directed entry of judg-

ment for the defendant.

This Court reversed, holding that in directing entry

of judgment for the defendant, the Court of Appeal

had improperly invaded the function and province of

the jury. Applying the Rogers Rule, the Court held

that it was for the jury to determine whether employer

negligence had played any role in producing the plain-

tiff’s injuries.

The Rogers Rule, of course, applies with equal force

and effect in Jones Act Cases. In Sentilles v. Inter-

Caribbean Shipping Company, 361 U.S. 107 (1959),

a Jones Act Case, the plaintiff was injured under the

following circumstances: When the vessel encountered

heavy seas, the plaintiff was pitched into the air and

fell back to the deck, where, upon landing, a wave

washed him a considerable distance along the deck.

, BLEED THROUGH

11

Shortly after the accident, the plaintiff became ill and

was hospitalized and treated for a serious case of tuber-

culosis. The plaintiff sought recovery from the defend-

ant shipowner both under the Jones Act and under the

general maritime law. The plaintiff’s theory was that

the shipboard accident had activated or aggravated a

previously latent tubercular condition. On appeal from

the verdict and judgment in favor of the plaintiff, the

defendant shipowner contended solely that the evidence

did not justify the jury’s conclusion that the accident

had caused the serious illness that followed it. The

Court of Appeal agreed and reversed the judgment.

The United States Supreme Court, however, reversed,

holding that the Court of Appeal had applied an im-

proper standard in testing the sufficiency of the evi-

dence. The Supreme Court held that the jury, as the

exclusive fact finding body, could properly have in-

ferred that the aggravation of the tubercular condi-

tion was caused by the accident. The Court went on to

hold that the jury’s power to draw that inference was

not impaired by (1) the failure of any medical wit-

ness to testify that the accident was in fact the cause

of the aggravation, (2) the lack of medical unanimity

as to the respective likelihood of the various potential

causes of the aggravation, or (3) the fact that other

potential causes of the aggravation were not conclusive-

ly negated by the proofs.

12

Although the Rogers Rule was clearly applicable to

the present case, the California Court of Appeal failed

to apply that rule, and applied instead California’s

“substantial evidence” test, the standard by which evi-

dentiary sufficiency is evaluated in civil actions gen-

erally. This Court has noted, however, that there are

valid reasons for placing F.E.L.A. and Jones Act Cases

on a different footing from ordinary personal injury

actions.

; In Rogers v. Missouri Pacific Railroad Co., supra,

3 this Court observed that these statutory negligence ac-

3 tions have special features which make them “signi-

‘ cantly different” from the ordinary common-law negli-

gence actions. Since railroad workers and merchant

seamen are not protected by the workman’s compen-

‘ sation statutes of the several states, these employees’

exclusive remedy against their employers for work-

related injuries is via the F.E.L.A., in the case of rail-

road workers, and the Jones Act/General Maritime

Law in the case of merchant seamen. Philadelphia &

Reading Railroad Co. v. Polk, 256 U.S. 332 (1920).

These statutes are remedial in nature and humani-

i tarian in their purposes and this Court, for these rea-

sons, has consistently directed that they be afforded a

liberal and expansive interpretation by the courts. Cox

v. Roth, 348 U.S. 297 (1955). Nowhere is this liberal-

ity of interpretation more evident than in those cases

involving evidentiary sufficiency on the issue of proxi-

mate causation.

ee ee lh le Pa Be ed OT

13

If one were to employ a “substantial evidence”’ rule

such as California’s, to test the evidentiary sufficiency

in Rogers, Gallick, and Sentilles, it is clear that no re-

covery by any of those plaintiffs could ever have been

upheld (and in fact in each of those cases lower courts

had concluded that the evidence was insufficient). This

Court, however, has made it abundantly clear in Rog-

ers and in subsequent related decisions, that the states

are not at liberty to apply their own standards of evi-

dentiary sufficiency in F.E.L.A./Jones Act Cases, but

rather must apply the more liberal and expansive Rog-

ers Rule.

Had the California Court of Appeal applied that rule

in its analysis of the instant case, as it was bound to

do, it would have been required to affirm the judgment

in favor of the petitioner below. Although there were

conflicts in the evidence, as there inevitably are, the

following evidence was adduced at trial:

1. The diamond safety tread on this metallic lad-

der had been worn away to the point that it could

hardly be seen (Reporter’s Transcript, p. 101).

2. Although the subject of placing anti-skid treads

on this ladder had been brought up repeatedly at safety

meetings held aboard the vessel, which meetings were

attended by the ship’s officers, and although the ship’s

officers had promised to install such treads, the officers

failed to install the treads on this ladder (Reporter’s

Transcript, pp. 10 and 237).

14

3. In describing his fall, the plaintiff testified that:

“I stepped down, and my foot went forward

and it twisted. And then I went down.” (Report-

er’s Transcript, p. 148).

Given the existence of the foregoing evidence, it

would hardly have been improper for the jury in this

case to conclude that a metal ladder which had received

sufficient use that its embossed metallic tread was worn

away to the point of invisibility, was unreasonably slip-

pery. Nor would it have been improper for the jury to

conclude that the ladder was unreasonably slippery

because it lacked anti-skid treads. And finally, it would

not have been improper for the jury to conclude that

the plaintiff had slipped as he was descending this lad-

der because of some slippery condition of the ladder.

Thus, if tested by the appropriate federal standard,

the evidence in this case was clearly sufficient to per-

mit the jury to conclude that the ladder was unreason-

ably slippery, and that the slippery condition, what-

ever its nature, had contributed in some way to cause

the petitioner’s fall, i.e., to infer that employer negli-

gence had played “any part, even the slightest” in pro-

ducing the petitioner’s injuries. In drawing that con-

clusion and in making that inference, the jury in this

case was doing nothing more than this Court has re-

peatedly held the juries are permitted to do in Jones

Act Cases.

RILEED THROUGH

15

Under the Rogers standard, the evidentiary suffi-

ciency of the plaintiff’s case was not impaired by:

1. The fact that the evidence on causation was

largely or entirely circumstantial. Rogers v. Missouri

Pacific Railroad Co., supra. The Court of Appeal ob-

served that there was no testimony that the worn con-

dition of the treads or the absence of anti-skid material

“rendered the ladder unsafe.” (Appendix A, p. 8). The

petitioner was clearly not required to produce any evi-

dence that the ladder was “unsafe”; he was merely re-

quired to produce evidence from which the jury could

conclude that the ladder was unreasonably unsafe.

2. The fact that the petitioner’s own fault may

have been a contributing factor in causing his injuries.

Throughout this proceeding, it has been the respondent’s

position that there was no evidence which would sup-

port a jury finding that the unsafe condition of the

ladder, “rather than” petitioner’s own negligence,

caused the petitioner’s fall (Appendix A, p. 7). The

Court of Appeal followed this line of reasoning. Such

an “either or” approach to causation, however, is en-

tirely inappropriate in a Jones Act case. In Rogers v.

Missouri Pacific Railroad Co., supra, this Court speci-

fically held:

“It does not matter that, from the evidence the

jury may also with reason, on grounds of prob-

ability, attribute the result to other causes, includ-

ing the employee’s contributory negligence.” (Em-

phasis added).

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3. The fact that the jury’s determinatici of proxi-

mate cause involves conjecture and speculation. This

Court, in Lavender v. Kern, 327 U.S. 649 (1946), real-

istically observed that a determination on the issue of

causation necessarily involves a degree of conjecture

and speculation. In Gibson v. Elgin, Joliet & Eastern

Railway Co. (7th Cir. 1957) 246 F. 2d 834, cert. den.

355 U.S. 897, it was held that a verdict in a F.E.L.A.

action may be permitted to stand even though it is

based solely on speculation,

Conclusion

By failing to apply the appropriate federal standard

in testing the sufficiency of the evidence to support

the judgment in favor of petitioner, the California

Court of Appeal has deprived petitioner of his sub-

stantial federal rights under the Jones Act. A continua-

tion of this practice by the California Courts will fa-

tally destroy the uniformity of application of the

Jones Act. For the foregoing reasons this petitioner

for a writ of certiorari should granted.

Respectfully submitted,

Epwarp J. NILAND,

STANLEY A. IBLER, JR.,

Attorneys for Petitioner.

BLEED THROUGH

17

I, STANLEY A. IBLER, JR., a member of the Bar of

the Supreme Court of the United States and counsel

of record for WILLIAM J. Dirk, petitioner herein, here-

by certify that on April 2, 1976, pursuant to Rule 33,

Rules to the Supreme Court, I served three copies of

the foregoing Petition for Writ of Certiorari on

American President Lines, Ltd. by depositing such

copies in the United States Post Office, 105 North

First Street, San Jose, California 95118, with first-

class postage pre-paid, properly addressed to the post

office address of Lillick, McHose & Charles, the

above-named respondent’s counsel of record at Two

Embarcadero Center, 26th Floor, San Francisco,

California 94111.

All parties required to be served have been served.

BoccaRDOo, BLUM, LULL, NILAND,

TEERLINK & BELL,

STANLEY A. IBLER, JR.,

111 West St. John Street.

San Jose, California 95113,

Telephone: (408)298-5678.

APPENDIX A

NOT TO BE PUBLISHED

IN OFFICIAL REPORTS Opy

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION Two

PILED

DEC 2 iF.

Cort of Boned! - Frat Aon. Dist.

C.ISFOGD C. PCATER, Clan”

WILLIAM J. DIRK, —_— —

Plaintiff and Respondent,

v.

AMERICAN PRESIDENT LINES,

a corporation, 1 Civ. No. 34681

Defendant and Appellant.

Plaintiff William Dirk, a merchant seaman who was em-

ployed aboard a vessel owned and operated by defendant American

President Lines, Ltd., brought suit to recover damages for per-

sonal injuries allegedly sustained in the course of his employ-

ment aboard said vessel, Plaintiff based his action upon the

Joner Act and the general maritime law. His complaint alleged

that defendant had negligently failed to provide him with a

reasonably sufe place to work and that the vessel was unseawor-

thy.

Defendant, by way of answer, denied the charging al-

legations of the complaint.

The case was tried before a jury, and the following

evidence was produced: Plaintiff testified that on June 22, 1969,

-l-

he was employed as a baker aboard defendant's vessel, the S. S.

President Roosevelt. At 10:15 p.m. that day, plaintiff completed

his duties in the ship's bakery shop and headed toward his quar-

ters below. A ladder located some 20 to 25 yards from the bakery

shop led down to A deck. The ladder was made of steel and was

approximately 12 steps in length. The individual steps, which

were approximately 18 inches wide, were not equipped with anti-

skid strips, but did have a raised diamond-shaped pattern on them.

The ladder was equipped with handrails.

3 Plaintiff testified that, as he started down tne iaccer,

+ he was gripping both handrails. However, when he reached the

| fourth or fifth step, he relaxed his grip on the handrails. He

+ then stepped down onto his left foot, and it twisted under him

4 and slipped forward. Plaintiff testified that he tried to tighten

his grip on the handrails to break his fall, but was unable to do

> so. He fell down the ladder, striking his right knee on the bot-

” tom step of the ladder and again on the deck below. Plaintiff

" then picked himself up and returned to his quarters. He discov-

ered that there was a split in the right knee of his pants and a

iarge spot of ofl. Plaintiff testified that he had put on clean

) pants at approximately 4:30 that afternoon. Plaintiff admitted

* that he had not noticed any grease or any other accumulation of

© foreign matter on the ladder when he was in the process of de-

F scending it. He also admitted that he had not examined the lad-

(der after his fall, but had just gotten up and walked away.

> BLEED THROUGH

Plaintiff testified that the spot on his pants was oil and not

grease, and he explained that "the oil that was on my pants was

on the deck down below when I fell... ."

Plaintiff testified that conditions in the ship's gal-

ley were such that there were nearly always pieces of greasy meat

lying on the floor. According to plaintiff, the cooks stepped on

this meat and therefore had black grease on the bottoms of their

shoes when they descended the ladder leading down to A deck.

Plaintiff testified that there was no grating or similar device

for scraping shoes located near the ladder. He also testified

that the raised diamond-shaped pattern on the steps of the ladder

was mostly worn away and was barely visible.

It was established that plaintiff had certain preexisting

physical problems with his right knee. In 1960, he was treated

for pain and swelling of both knees, and in 1967, he sprained his

right knee and was unable to work for several months. Following

his 1969 fall on the President Roosevelt, plaintiff was tacer-

viewed by defendant's claims adjuster, Mr. Bunch. During the

course of this interview, plaintiff told Bunch that "I must have

tripped because I felt my leg cave in under me causing me to fall

forward on down the ladder to the deck." Plaintiff also told

Bunch that he did not recall that there was anything wrong with

the ladder, and he denied that he had slipped on anything. When

Bunch asked plaintiff if he had noticed any grease on the ladder,

plaintiff replied that he had not.

«Ro

In his testimony at the trial, plaintiff admitted having

told Mr. Bunch that there was nothing wrong with the ladder, and

he explained that this statement was true with the exception of

the fact that the diamond-shaped treads were worn. Plaintiff

testified that he had not mentioned the worn condition of the

tresdés to Bunch because Bunch had not asked him if the ladder was

worn

Ie @ éeposition taken in January 1971, plaintiff was

eched whether be bed ever slipped on the ladder prior to his fall

ia poms P69. Pleteciff replied that he had not, and he explained

thet on ell peter eccasions, he had kept both hands on the hand-

celle, sliding them down as he descended the ladder. He then

eteted, “Bet thet perticular night [June 22, 1969] I just let my

head loose off the rail and I stepped down, and ny foot went for-

ward and it twisted. And then I went down." In his deposition,

plaintiff was also asked whether he had hit his knee on anything

during his fall. He replied that he struck it on the deck. He

was then asked whether his knee struck any part of the ladder dur-

ing his fall, and he replied that it had not.

Frank Ramsey, a seaman who also worked on the S. S.

President Roosevelt in 1969, testified that prior to the date of

plaintiff's fall, he (Ramsey) had attended several safety meet-

ings on the ship. Ramsey stated that on several occasions there

was talk at the safety meetings concerning the advisability of

placing antiskid treads on the ladder where plaintiff fell.

aie

*

BLEED THROUGH

Ramsey explained that there were occasions when there was an

inch or an inch and a half of water in the galley, which water

would overflow down the ladder. It was suggested, therefore,

that antiskid material be installed in the galley, the waiter's

pantry and the ladders leading down from the galley. Accord-

ing to Ramsey, it was agreed that the antiskid material would

be installed, but the work was never done. Ramsey testified

that he had seen other members of the crew slip on the ladder

leading down to A deck, although none of these falls had resulted

in injuries. Ramsey had also seen food and dirty dishes carried

up and down the ladder.

Chief Steward Raymond Cavanaugh produced minutes from

safety meetings which indicated that antiskid material had been

installed in the galley and adjacent areas. However, these min-

utes contained no reference to any recommendation that antiskid

material be installed on the ladders. Cavanaugh testified that

he recalled the treads on the ladder being in good condition. He

did not recall the subject of the ladder ever having been raised

at a safety meeting. He was likewise unaware of any accidents

having occurred on the ladder, and he had received no complaints

concerning the condition of the ladder. Cavanaugh denied that

food was carried up or down the ladder.

The deposition of Robert Swan, who was employed as a

carpenter on the S. S. President Roosevelt, was read into evidence.

Swan described the procedure on board the ship for requesting

<§-

maintenance work in crew areas, and he stated that he had never

received a request for any type of work on the ladder where

plaintiff fell. Swan recalled a work order involving the in-

stallation of antiskid material in the galley. From his per-

sonal observations, Swan was not aware of any ladder on the ship

where replacement of the treads was needed.

At the conclusion of the trial, the jury returned a

verdict in favor of plaintiff and against defendant in the amount

of $100,000. Judgment on verdict was duly entered, and defend-

ant thereafter moved for a new trial and for judgment notwithstand-

ing the verdict. The trial court denied both motions. Defendant

then filed a notice of appeal from the order denying its motions

for new trial and for judgment notwithstanding the ain,

Defendant takes the position on appeal that the evidence

above summarized, when viewed in the light most favorable to

plaintiff, was nevertheless insufficient as a matter of law to

—

The scope of review on this appeal is a narrow one. Insofar as

defendant purports to appeal from the order denying its motion

for new trial, said order is nonappealable and the appeal there-

from must be dismissed. . (Rodriguez v. Barnett (1959) 52 Cal.2d

154, 156.) The order denying detenaant s motion for judgment

notwithstanding the verdict is appealable. (Code Civ. Proc., §§

629; 904.1, subd. (d).) The sole question which can be raised

on such an appeal is whether the court should have granted the

motion, viz., whether, disregarding conflicts, giving plaintiff's

evidence its full face value and indulging in all legitimate in-

ferences favorable to plaintiff, it nevertheless appears from a

review of the entire cause that there is no evidence upon which

a judgment for plaintiff can be sustained. (Preston v. Hurtt

(1961) 196 Cal.App.2d 781, 785-6.)

whe

support a finding that plaintiff's fall was the result either of

defendant's negligence or of the unseaworthy condition of the

ship. Defendant asserts that in a factual situation such as that

here present, it would serve no useful purpose to analyze the evi-

dence separately in terms of negligence and unseaworthiness. De-

fendant correctly points out that it is rare that the circum-

stances of an injury will constitute negligence but not unseawor-

thiness. (Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406, 418)

and that in a case involving a fall allegedly resulting from a

slippery condition, a jury's finding that the shipowner was neg-

ligent but that the vessel was seaworthy must be set aside as

irreconcilably inconsistent. (Turner v. "The Cabins", Tanker,

Inc. (D. Del. 1971) 327 F.Supp. 515.) Defendant also points

out that the plaintiff's burden of proving unseaworthiness is

a lesser one, since he need not establish the defendant's know-

ledge of the dangerous condition. (Mitchell v. Trawler Racer, Inc.

(1960) 362 U.S. 539, 549.) Thus, in determining the sufficiency

of the evidence in this case, the sole issue is whether defend-

ant's fall was the result of the unsafe condition of the ladder.

If the evidence supports such a finding, defendant concedes

that the verdict must be upheld on a theory of unseaworthiness

and that it is irrelevant whether the jury also found that de-

fendant was negligent and had knowledge, actual or constructive,

of the defective condition of the ladder. If, on the other

_™

hand, the evidence does not support a finding that defendant's

fall was the result of the unsafe condition of the ladder, de-

fendant contends that the verdict for plaintiff cannot be upheld

on either a negligence or an unseaworthiness theory. Defendant

takes the position that there was no evidence which would sup-

port a finding that the unsafe condition of the ladder, rather

than plaintiff's own negligence, caused plaintiff's fall.

A thorough review of the evidence fails to disclose

any tenable theory upon which a jury could reasonably base a

finding that plaintiff's fall was caused by the unsafe condition

of the ladder on defendant's ship. Plaintiff's own testimony

at the trial established that his fall occurred after he had

relaxed his grip on the handrails and stepped onto his left foot

in such a manner that it twisted under him and slipped forward.

When interviewed by defendant's claims adjuster, plaintiff stated

that he "must have tripped" and that he felt his leg “cave in

under me." Plaintiff told the claims adjuster that there was

nothing wrong with the ladder and he specifically denied that

he had slipped on anything. In a pretrial deposition, plaintiff

accounted for his fall by explaining that he had deviated from

his prior pattern of holding on to the handrails and had "just

let my hand loose off the rail" before stepping down. In his

testimony at the trial, plaintiff admitted that he had not no-

ticed any grease or other accumulation of foreign matter on the

ladder when he was descending it. He had not examined the ladder

y BLEED THROUGH

after his fall, but had merely gotten up and returned to his

quarters.

Viewing the evidence in the light most favorable to

plaintiff, the liability aspect of his case was based upon two

facts: (1) the ladder was not equipped with antiskid material

and the diamond-shaped treads on the steps of the ladder were

worn; and (2) plaintiff discovered a spot of oil on his pants

after his fall.

There was no testimony by plaintiff or by anyone else

that the absence of antiskid material and the worn condition of

the diamond-shaped treads rendered the ladder unsafe under ord-

inary conditions. Witness Ramsey testified only that it had been

recommended at safety meetings that antiskid material be installed

on the ladder to render it safe on occasions when water overflowed

down the ladder from the galley. There was no evidence of any

water in the galley or on the ladder at the time of plaintiff's

fall.

The evidence of the oil spot on plaintiff's pants is

likewise of no real significance in determining the cause of his

fall. Plaintiff testified that the oil spot was located on the

right knee of his pants. In his deposition, plaintiff had denied

that his knee struck any part of the ladder during his fall, and

he stated that he hit his knee only on the deck at the bottom of

the ladder. At the trial, plaintiff testified that, in actual

fact, he had struck his knee on the bottom of the ladder and

-9-

again on the deck. However, he also testified that the oil

on his pants came from the deck at the bottom of the ladder.

He further stated that the substance on his pants was oil and

mot the black grease which, according to plaintiff, accumulated

on the shoes of cooks who had stepped on meat in the galley.

Viewing plaintiff's testimony in the most favorable light pos-

sible, it is nevertheless apparent that the oil spot on his

pants was acquired after he had already fallen several steps

down the ladder. Further, there was no evidence even tending

to suggest that the oil was a substance which came from the

galley and which inferably could have been tracked from the gal-

ley down the ladder. Thus, the oil spot on plaintiff's pants

sheds no light whatever on the cause of plaintiff's fall.

In Wiseman v. Sinclair Refining Company (2d Cir. 1961)

290 F.2d 818, the plaintiff brought suit to obtain damages for

negligence and unseaworthiness, claiming to have slipped on a

greasy ladder on board the defendant's vessel. The plaintiff

recovered in the trial court, but the judgment was reversed

by the appellate court with directions to dismiss the action.

The appellate court, in so holding, stated: "More basic ground

for reversal is the absence of evidence of liability. Neither

plaintiff nor any other witness testified that they ever saw

grease on the stair. To be sure, plaintiff said on direct ex-

amination that the step was greasy. But on cross-examination

he admitted that he did not see grease there at the time; that

-10-

. RI EEN THROUGH

he only saw grease on his shoe. But where that grease came

from does not appear." (P. 820.)

We find that the evidence, in this instance, is con-

siderably weaker than in the Wiseman case, since the plaintiff

in that case did testify thac there was grease on his shoe,

which testimony at least suggests that the grease was what he

slipped upon. In the instant case, plaintiff's own unequivocal

testimony shows that the oil on his pants could not have been

the cause of his fall because he did not come into contact with

it until he had already fallen to the bottom of the ladder. Thus,

the Wiseman case appears to be controlling of this case and fur-

nishes direct authority for the proposition that the evidence

produced by the plaintiff herein was insufficient as a matter

of law to establish defendant's liability.

Plaintiff has made no attempt to distinguish the Wiseman

case, but he does assert that Barboza v. Texaco, Inc. (lst Cir.

1970) 434 F.2d 121, _—_ "a cemarkable factual similarity" to

the instant case. We do not agree. In Barboza, it was undis-

puted that the plaintiff slipped on zucchini squash while de-

scending a stairway on the defendant's vessel. Squash was found

on the plaintiff's foot and was also found on two steps of the

stairway. On appeal by the defendant from a judgment for the

plaintiff, it was contended that the evidence was insufficient

to support a finding of liability because there was no basis

other than speculation for determining whether the plaintiff

=2i-

had tracked the squash onto the stairs himself or whether it

had been there prior to his arrival. The appellate court, in

rejecting this argument, noted that the plaintiff had testified

that he had cleaned his shoes with a mop 10 minutes before his

fall and that he "couldn't possibly have" tracked the squash

onto the stairs himself and that there was also evidence that

the galley man had descended the stairs shortly before the

plaintiff's fall.

The situation in the Barboza case was thus one where

it was undisputed that there was a particular foreign substance

on the stairs which rendered them slippery and unsafe and which

caused the plaintiff's fall. There was also evidence that it

was not the plaintiff, but someone else, who had caused the sub-

stance to be on the stairs. The instant case is totally dis-

similar, in that there was no evidence to show that plaintiff's

a in fact the result of any foreign substance or other

unsafe condition of the ladder.

To impose liability upon defendant on the basis of the

evidence disclosed by the record in this case would require one

to indulge in gross speculation as to the proximate cause of

Plaintiff's injury. If such speculation is permitted, then it

Would not be unreasonable to conclude, among other possibilities,

that it was plaintiff's relaxed hold on the handrails, coupled

with his preexisting knee condition, rather than a defective

condition in or upon the ship's ladder, which was the direct

Ad

STE SET IG LONELINESS CMM SAUTER Nar OMRON REA PDE TR SANIT EMG SONIC MD WA

cause of his fall. While federal case law is quite liberal

in defining unseaworthiness of a vessel, we know of no auth-

ority which allows jurors to base their determination upon

surmise or conjecture. In fact, they are expressly forbidder

to do so,

Accordingly, we couclude that plaintiff's cause falls

directly within the purview of the Wiseman holding and that

defendant is correct in its contention that the trial court

erred in denying its motion for judgment notwithstanding the

verdict.

In view of sv a determination, we ueem it unnecessary

to discuss defendant's other contentions,

The purported appeal from the order denying defend-

ant'’s motion for new trial is dismissed. The order denying

defendant's motion for judgment notwithstanding the verdict is

reversed, with directions to the trial court to grant same and

enter judgment for defendant.

Rouse, J.

WE CONCUR:

Taylor, P. J.

Kane, J.

APPENDIX B

; rN AL

Court of Appeal of the State of California

First Appellate District vig

DEC. . +975

CNT Of Aap! Piet 6. OS

Division _™ —_ Cuvee tng ona GOR

Willies J. Dirk

———Plaintitt and Wespondent, No a

American President Lines, Ltd

acted and Appellant.

|

BY THE COURT:

The petition for rehearing in the abowe entitled cause is

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

DIRK

Ve

for hearing DENIED.

Chagj bestace

rh eee Sy PRN ORIEN AL RH