In this case certiorari was granted, 297 U.S. 701, 56 S.Ct. 573, 80 L.Ed. 990, to review a ruling of the Supreme Court of California, 48 P.(2d) 678, that assumption of risk is not a defense to a suit brought by a seaman under the Jones Act (Merchant Marine Act of 1920, § 33) 41 Stat. 1007, 46 U.S.C. § 688 (46 U.S.C.A. § 688), to recover for personal injuries due to the negligent failure of the officers of the vessel to provide him with a safe place in which to work.
Respondent was employed by petitioner as a seaman on a coasting vessel. While engaged in unloading lumber from the deck he was injured by a fall into an open hatch. On the trial there was evidence from which the jury could have found that the deck of the vessel, from the bulwarks to within about 40 inches of either side of the hatch coamings, was loaded with heavy timbers, and that the remaining deck space, at the sides of the hatch, was loaded with loose lumber, consisting of pieces 2 X 3 and 1 12 , to a height 5 or 6 feet above the deck; that this lighter lumber, or a substantial part of it, had been loaded in sling loads, without repiling, in such negligent fashion as to render it unstable; that the pile of lumber, with the open hatch alongside, constituted an unsafe place to work for those required to go upon it, as the master knew; and that the upper part of the pile of lumber, on which respondent was standing in order to adjust a sling about some of the lumber to be unloaded, toppled over because of its instability, throwing him through the open hatch into the hold and causing the injuries complained of. The trial court refused requests to charge that assumption of the risk by respondent was a defense, but left it to the jury to say whether there was negligent failure of the master to provide a safe place for the respondent to work, and whether the failure was the proximate cause of the injury. It reduced the jury's verdict for respondent and gave judgment accordingly which the state supreme court sustained.
Numerous grounds for reversal are urged here, of which only two require our notice. One is petitioner's contention that even though assumption of risk is not generally a defense to a suit brought under the Jones Act, it must be deemed available where, as in the present case, the injured seaman is employed on a coasting vessel which was in port at the time of the accident. It is argued that as he was not required to sign art cles, 18 Stat. 64, 46 U.S.C. § 544 (46 U.S.C.A. § 544) compare 46 U.S.C. § 563 (46 U.S.C.A. § 563), and consequently was not subject to the punishment for desertion prescribed by 46 U.S.C. §§ 701-713 (46 U.S.C.A. §§ 701-713), he was free to avoid the risk by leaving the vessel and his employment. The other objection is that the trial court erred in refusing petitioner's request to charge that if the jury should find that respondent, in placing the sling underneath the lumber, 'chose to perform the act in a dangerous manner such as stepping too near the edge of the deck load when there was a safe method of doing the work involving no risk of the edge of the deck load giving away, then the plaintiff cannot recover.'