Andrew Taylor v. Moram Agencies, Far Eastern Steamship Company, and Does I Through Xx, Inclusive

739 F.2d 1384 1985 A.M.C. 234 Andrew TAYLOR, Plaintiff-Appellant, v. MORAM AGENCIES, Far Eastern Steamship Company, and Does I through XX, inclusive, Defendants-Appellees. No. 82-4646. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1984. Decided June 4, 1984. John J. Hughes, Law Offices of Mansfield Davis, San Francisco, Cal., for plaintiff-appellant. John A. Flynn, Graham & James, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before ANDERSON, SKOPIL, and FERGUSON, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 Andrew Taylor, a longshoreman, was injured in a fall while assisting to discharge a cargo of mung beans from a Russian freighter on June 20, 1976. He appeals a district court judgment in favor of defendant Far Eastern Steamship Company (FESCO) entered after the conclusion of a bench trial. We affirm. 2 Fed.R.Civ.P. 52(a) establishes the rule that findings of fact will not be set aside unless they are "clearly erroneous," emphasizing that due regard should be given to the trial court's opportunity to judge the credibility of the witnesses. A finding…

Andrew Taylor, a longshoreman, was injured in a fall while assisting to discharge a cargo of mung beans from a Russian freighter on June 20, 1976. He appeals a district court judgment in favor of defendant Far Eastern Steamship Company (FES-CO) entered after the conclusion of a bench trial. We affirm.

Fed.R.Civ.P. 52(a) establishes the rule that findings of fact will not be set aside unless they are “clearly erroneous,” emphasizing that due regard should be given to the trial court’s opportunity to judge the credibility of the witnesses. A finding of fact is “clearly erroneous” within the meaning of Rule 52(a) and should be reversed where, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been *1386 committed.” United States of America v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948). To the extent that the findings of the trial court represent an application of the law to the facts found, this court is not restricted by Rule 52(a) and may make its own application of the law as it understands it. Kwikset Locks, Inc. v. Hillgren, 210 F.2d 483…

dissenting:

Andrew Taylor, the plaintiff, was injured while working as a longshoreman unloading a vessel owned by the defendant, Far Eastern Steamship Co. (FESCO). Taylor, who operated the winch, was injured when he slipped on loose mung beans that were on the winch platform. The question before the court is: Was FESCO negligent in failing to remove the beans from the winch platform.

The district court entered judgment for FESCO after a bench trial. In reviewing its decision, we freely review questions of law, while findings of fact are overturned only if clearly erroneous. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). “A determination of negligence is generally recognized as a mixed question of law and fact.” Id. The appropriate standard of conduct required of the defendant is a question of law. Id.

In reviewing the facts as found by the district court, I conclude that the district court both applied an incorrect standard of care, and erred in applying the facts to the heightened standard of care it adopted. The facts show that FESCO was negligent and that its negligence caused plaintiffs injury. I would remand for further proceedings consistent with' this…