Davies v. Oceanic Steamship Co.
Before: Haven
Synopsis
Negligence — Action fob Death — Open Hatchway on Vessel — Carelessness in Loading — Master and Servant — Duty of Owner of Vessel — Pleading. — A complaint by an administratrix in an action for damages for a death caused by negligence, which alleges, in substance, that the defendant negligently left unprotected an open hatchway on its vessel, through which the deceased, who was lawfully employed on the vessel, was precipitated and killed, owing to his being struck by a barrel of lime by and through the carelessness and negligence of the defendant, and its servants and employees, in and about the loading of the vessel, states a cause of action, and shows a breach of duty on the part of the owner of the vessel.
Id.—Evidence—Intoxication of Employee — Harmless Error.—The testimony of a witness, to the effect that the employee who had charge of the conducting of the barrel to the hatchway when the deceased was struck and thrown down the hatchway would get intoxicated when he “came off a trip,” though irrelevant, is not prejudicial to the defendant, where it also appears from the testimony of the same witness that such employee was not intoxicated at the time of the accident.
Id. — Evidence of Negligence — Questions of Fact.—Where there is evidence tending to show that very shortly before the accident the deceased was engaged in calking near the hatchway, it is for the jury to determine from conflicting evidence what was his position at the time of the accident, and whether in the mode the lime was being hoisted the man employed could manage and control the barrels, and if so, whether, in view of all the circumstances, he was not negligent in attempting to convey the barrel to the hatchway without looking to see if it would in its passage strike the deceased, and whether the deceased was exercising the degree of caution required of him by his situation.
Id. — Contributory Negligence — Anticipating Negligence.—The deceased was not guilty of contributory negligence, if he would not have been in danger had care been exercised by the person handling the barrel from the. railing to the hatchway, and was not bound to anticipate the latter’s negligence.
Id. — Conflicting Evidence — Doubtful Inferences — Questions of Fact,—When the evidence is conflicting, or when reasonable men might differ as to the inferences which ought to be drawn from the undisputed evidence, the question of negligence or contributory negligence is not one of law, but of fact.
Evidence — Impeachment of Witness by Party Calling Him — Contradictory Statements. — When a witness fails to give any evidence in relation to a fact, and he is then asked by the party calling him if he had not made a statement to others as to the existence of such facts, which is denied by the witness, the error in overruling the objection to such question will not warrant a reversal, when no evidence is offered to show that the witness did in fact make the statement denied by him.
De Haven, J. — This is an action by the plaintiff, as administratrix, to recover damages for the death of H. B, Davies; the complaint alleges that said death was caused by the negligence of defendant, its servants and employees. Plaintiff recovered judgment for the sum of seven thousand dollars.
1. It is claimed by the appellant that the complaint does not state a cause of action, in that it does not show that the defendant failed in the discharge of any duty it owed to the deceased. It is urged that the negligence with which appellant is charged is the leaving unprotected an open hatchway on its vessel, through which the deceased fell and was killed, and we have been referred to the cases of Dwyer v. National S. S. Co., 17 Blatchf. 474, and The Bark Germania, 9 Ben. 356, which hold that so doing is not negligence for which an action will lie. These cases are not in point. It is true, the complaint alleges that the hatchway through which deceased fell was negligently left unprotected, but this is only part of an averment the gist of which is, that deceased was lawfully employed on the vessel, and “by and through the carelessness and negligence of said defendant, and its servants and employees, in and about the said loading, and without any negligence or fault of said H. B. Davies, said H. B. Davies was struck by a barrel of lime which said defendant, its servants and employees, were engaged in loading into a hatchway near said H. B. Davies, and was precipitated down said hatchway in the said vessel.” This, with the other averments, states a cause of action. The defendant did owe to de-? [284]ceased, lawfully on its vessel, the duty of not negligently throwing him down the hatchway.
2. The testimony of the witness Classen, to the effect that the witness Hulgerson would get intoxicated when he “ came off a trip,” though not relevant to any issue in the case, could not have prejudiced the case of the defendant. It was clear from Classen’s evidence that Hulgerson was not intoxicated at the time of the accident, and the admission of the evidence complained of could not have influenced the verdict, and is therefore not a cause for reversing the judgment.
3. The plaintiff offered no evidence tending to show that the witness Luce had made before the trial the statement embodied in the question asked him, and which the witness denied; and therefore the rule laid down in People v. Jacobs, 49 Cal. 384, has no application.
4. It is also urged that the evidence is insufficient to sustain the verdict. No person saw the deceased at the time of the accident, except the witness Hulgerson, and he does not seem to have done so until deceased was struck by the barrel of lime. He says: “I did not see him before the barrel struck. He must have come from aft.” And this witness further stated that when he first saw him deceased was between him and the hatchway. But there was evidence tending to show that within a very short time before the accident the deceased was engaged in calking near the hatchway, and it was for the jury to determine his position at the time, from all the circumstances appearing before them, and so it was for them to determine, from conflicting evidence, whether, in the mode in which the lime was being hoisted, the' witness Hulgerson could manage and control the barrels while in transit from the railing to the hatchway.
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