20 Wash. 580 | Wash. | 1899
The opinion of the court was delivered by
The respondent sued the appellant, the Forth American Transportation & Trading Company, alleging an agreement by the defendant to take him from Seattle to Dawson by September 15, 1897, by way of St. Michael and the Yukon river. When the steamer Cleveland, on which he took passage, arrived at Ft. Yukon, it proceeded no further. It was claimed by defendant’s officers that it could not proceed further by reason of low water, and the respondent was returned by the company to St. Michael, from whence, at his own expense, he returned to Seattle, the respondent paying to appellant for passage money from Seattle to Dawson City the sum of $200. The suit is to recover the passage money, the expense he was put to in returning to Seattle, and damages for loss of time. The jury returned a verdict in the sum of $380.50 in favor of plaintiff. He was awarded $200, the passage money; $52.50, expense of return to Seattle; $8, board paid by respondent at St. Michael; and $120, for loss of time. Judgment was entered on this verdict, and an appeal was taken here.
The second assignment of error embraces the same proposition, viz., the court directed the jury that the company had no right to compel or require the passengers to get off and stop at Dt. Yukon or IVIunook, if they were not willing to do so.
The third assignment is that the court erred in refusing to give the following instruction asked by the defendant:
“ I instruct you, gentlemen, that if you shall find that the defendant company carried plaintiff to Tt. Yukon without any unreasonable delay, and at that place encountered a stage of water so low as to make a continuance of navigation towards Dawson impossible, that this constitutes the act of God, and that the company was excused from carrying him further towards Dawson until the stage of water should be sufficient.”
Conceding, without deciding, that low water, nnder the circumstances mentioned in the instruction, is an act of God, this instruction does not contain the qualifications
“ Flow, the defense here, really and strictly speaking, is that the defendant was prevented from taking the plaintiff from Ft. Yukon to Dawson City by circumstances over which it had no control; in other words, it*585 bases it upon, tbe ground of an act of God. How, I am not going to read to you the more accurate statement that I gave to you in another case of what constitutes the act of God. In order to excuse non-performance of a contract on the ground of an act of God, there must be no mixture in that, first, of want of diligence; there must be no admixture of negligence; there must be no admixture of want of judgment or skill. In an act of God no amount of judgment or skill or wisdom can prevent the damage or injury. That is what distinguishes it from other things that have connected with them the agency of man.”
This instruction, while brief, we think, was explicit and correct; and the other instructions asked, as we have said before, are not applicable, for the reason that this was the only real contest in the case, viz. whether the expedition failed by reason of the act of God. There is no pretext that there was any opportunity for this passenger to have reached Dawson by any other boat during the season of 1897. There was virtually an abandonment of the trip by the company. This is shown by the testimony of the captain of the boat, Oapt. Barr. His testimony is to the effect that the water was so low in the Yukon river that the boat could not proceed, and that there was no probability or expectation of any boat getting up the river that fall. In fact, it is conceded that the passengers understood that they had to disembark either at Munook, Tanana, Et. Yukon, or Bampart City. Indeed, the captain stated that he posted a bulletin up showing the passengers how many pounds of provisions they could buy to sustain them during the winter; that they could get them there or at Bampart City; and he stated that, if they got off at either of those places, he would give them each their proportion of the load of the boat that consisted of provisions, divide the cargo up, and allow each passenger to take a ticket or an order for transportation' on the boat the next trip it would make. And, showing conclusively that the next trip which
“Why, they ashed to see Mr. Weare, and Mr. Weare had a talk with them in the cabin of the boat. Took occasion to reprimand me for giving them tickets for next season.”
So that it plainly appears that the trip was abandoned at .least for that year; and, that being the case, the instructions asked for by the appellant, even if otherwise constituting the law, were not in point, under the undisputed testimony in the case.
The last error assigned is for the sustaining of an objection to a question propounded to witness Barr, in which he stated that they had agreed to release the boat from all responsibility in case they were taken back to St. Michael. This statement was alleged to have been made to a Mr. Weare, and it was objected to on the ground that it was not responsive to the question asked. It is contended that this conversation should have been admitted by this witness, for the reason that it was testified to by the complainant’s witnesses Overstreet and Lambert; but we think the testimony was properly ruled out by the trial court, for the reason that this conversation was not the conversation which had been testified to by the witnesses for the respondent. At least, it was not identified as such, and it was not shown that the respondent here had anything to do with or was in any way concerned in the propositions that were discussed in that conversation. We think there were no prejudicial errors committed by the court in the trial of this cause, and the judgment will be affirmed.
Gordon, 0. J., and Fullerton, Anders, and Beavis, J«L, concur.