DocketNumber: Civ. No. 20606
Citation Numbers: 213 Cal. App. 2d 601
Judges: Bray
Filed Date: 3/6/1963
Status: Precedential
Modified Date: 1/12/2022
In an action brought under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, plaintiff appeals from a judgment in his favor in the sum of $1,504.92.
Questions Presented
1. Is the finding of contributory negligence supported?
2. Are the damages inadequate?
Record
The rule of comparative negligence obtains in this action. Plaintiff, a longshoreman, was injured by being struck on the head by a falling plank on board defendant’s freighter MS Burrard. The action was tried without a jury. At the conclusion of the trial defendant’s motion to amend its answer to plead contributory negligence on plaintiff’s part was granted. The court found that the crew of the vessel was negligent but that plaintiff was equally at fault. Following the comparative negligence rule of admiralty law (see Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406 [74 S.C.t 202, 98 L.Ed. 143] ; Chelentis v. Luckenbach 8.8. Co. (1918) 247 U.S. 372 [38 S.Ct. 501, 62 L.Ed. 1171]) the court mitigated
1. Contributory Negligence.
August 22, 1956, plaintiff and other longshoremen were assigned to discharge cargo from the No. 3 hatch of the freighter. Before discharge commenced, the booms and guy wires had to be rigged, and plaintiff and others of his longshore gang were assigned to perform rigging on the port side of the superstructure of the ship. They noticed some of the vessel’s sailors working overhead on a painting scaffold which was swung out over the side directly over an area where some of the longshoremen would necessarily have tasks to perform in connection with rigging the ship's gear. Upon request of the stevedore boss, the seamen ceased their painting operations and made the scaffold fast to the ship’s side so that the gear could be rigged below. Union rules provided that no longshoremen might work while others were working overhead.
The longshoremen proceeded to rig the guy wires. After the rigging appeared to have been satisfactorily concluded the longshoremen went back to the No. 3 hatch. However, the rigging was not satisfactory and after seven to ten minutes the longshoremen returned to make further adjustments from a covered passageway below the scaffold and out of sight of the sailors above, who during the interval had resumed painting. Reaching for a guy line, plaintiff leaned out from the passageway. At this time the seamen were moving the scaffold and a plank serving as a platform on the scaffold fell, striking plaintiff, rendering him unconscious.
The court found that plaintiff in returning “to the area immediately beneath the staging via a covered passageway from which he could not be seen by the sailors working above . . . did not warn the sailors of his return or look to see if the sailors had recommenced lowering the paint staging. Plaintiff then leaned outboard from under the protection of the covered passageway until his head and neck were beneath the staging.” Plaintiff “knew or should have known that the sailors might recommence lowering their paint staging after plaintiff and the other longshoremen left the area beneath it, and he knew or should have known that in sticking his head out beneath the staging there was danger of injury to his person. Plaintiff was negligent to a degree at least equal to the negligence of the vessel’s crew.”
“ As has so frequently been said, it is the general rule
2. Damages Adequate.
The evidence supports the court’s finding that plaintiff was damaged only in the sum of $3,009.84 (the amount which would have been awarded if there were no contributory negligence).
Plaintiff testified that some five years after the accident he still had sharp pain in the neck, shoulders and ears and suffered from headaches and dizziness, and that because of the pain he works only three days a week; also that since the accident he was unable to do the heavy and more plentiful work of a “hold man” aboard ship. However, it appears that he had worked aboard ship since the accident. Moreover, since the accident he has incurred three other head injuries while doing so. In June 1957 he was hit on the head by a cargo hook; in October 1957 he hit his head on a metal shelf, and in January 1959 he was hit on the head by a crowbar. All of these required medical treatment. This series of subsequent injuries, while none of them appeared to be major, obscure the causative chain linking plaintiff’s present complaints to the injury of August 1956.
It is also notable that plaintiff’s inability to do heavy work appears in large part to stem from a series of back injuries unrelated to the 1956 injury. These occurred in 1950, 1952, 1958, and 1959. After the 1959 back injury plaintiff was given a medical exemption from doing heavy work.
The only medical testimony was that of plaintiff’s physician, an orthopedic surgeon, who examined plaintiff in January 1961. (The trial was in August.) Although the doctor testified that in his opinion plaintiff’s complaints with reference to his head and neck were attributable to the accident in question he also testified that his examination showed plaintiff to be a healthy, well-developed individual who displayed no objective signs of injury, recent or old, and no deformities or abnormalities. X-ray films indicated an arthritic condition which, in the doctor’s opinion, might have antedated the 1956 injury. The doctor’s “guarded” prognosis was that plaintiff should be cautious about heavy work and that it was impossible to say how long the headaches would last. The doctor also stated that the examination indicated that plaintiff had been working steadily, showing no muscular atrophy. It should be noted that plaintiff failed to disclose to the doctor the other head injuries. Plaintiff attributed this to a defective memory stemming from the 1956 injury.
It therefore seems reasonable to attribute the later losses to the intervening injuries, particularly the back injury on account of which plaintiff went on light duty. This is apparently what the trial court did. “ [T]he plaintiff has the burden of proving, with reasonable certainty, the damages actually sustained by him as a result of the defendant’s wrongful act, and the extent of such damages must be proved as a fact.” (Chaparkas v. Well (1960) 178 Cal.App.2d 257, 259 [2 Cal.Rptr. 879].) Plaintiff failed to prove more damages than those found by the court.
In any event, it cannot be said that the award is so meager that it shocks the conscience and is inadequate as a matter of law (cf. Wilson v. City & County of San Francisco (1951) 106 Cal.App.2d 440, 443 [235 P.2d 81]) or that there is no substantial evidence to support the court’s findings.
The judgment is affirmed.
Sullivan, J., and Molinari, J., concurred.
All plaintiff's medical expenses were covered by insurance or compensation.