40 Wash. 376 | Wash. | 1905
On December 24, 1903, the steamship “Tampico,” owned and operated by appellant, the Globe Navigation Company, left Tacoma, Washington, on a voyage to the Hawaiian Islands. Despondent, Patrick J. Woods, who was aboard -said ship as an able seaman, was injured while on tbe Pacific Ocean, and brought this action for damages sustained.
The complaint alleged, that respondent was injured by reason of the negligence and carelessness of the master in
Appellant denied that said injury was caused by any negligence on the part of the owners of said vessel; alleged that the broaching of the vessel resulted from the inability of the crew to manage the same, on account of the violence of the elements, and by reason of the fact that the steering apparatus had, as a consequence of violent storms, become out of order; and that, if there was any negligence, it was that of the respondent himself, or of a fellow servant. These affirmative allegations were denied by the reply. Upon a jury trial, a verdict was rendered in favor of respondent for $2,000; and a motion for a new trial being denied, judgment was entered upon said verdict, and this appeal has been taken.
On the trial respondent’s contention was that it is the custom of officers in charge of sea-going vessels to give notice and warning to seamen, while in the discharge of their duties, of any sudden change in the course of the ship-, so that such seamen may protect, themselves from danger resulting therefrom; that, as the master of the Tampico failed to give warning of his order to place the helm hard down, he was
Appellant, has cited numerous authorities which seem to sustain its view. These authorities, however, are taken almost entirely 'from decisions of tbe federal courts, in which tbe fellow servant doctrine is different from that heretofore announced by this court. We think tbe position of appellant, that tbe master and respondent were fellow servants, cannot be sustained in view of our former bolding in Keating v. Pacific Steam Whaling Co., 21 Wash. 415, 58 Pac. 224, where it was held that tbe relation of fellow servant does not exist between tbe captain or mate and an ordinary seaman.
As above suggested, respondent contended that it was tbe custom on sea-going vessels for a master or mate to give
Appellant made a motion for a new trial, in which it urged the foregoing points, and also contended that it was entitled to a new trial by reason of. surprise. In support of said motion, appellant’s attorney who tried the case filed an affidavit showing that one Hall, who had been subpoenaed as a witness by appellant and had promised to attend the trial, had, without notifying appellant or its attorney, failed to appear when wanted] that the testimony of said Flail was of great importance, and that his unexpected absence constituted surprise. Said attorney, by his affidavit, also stated that one Tollefson, the ship’s carpenter, made statements upon the witness stand entirely at _variance with what he had previously told appellant and its attorneys, which statements were very damaging to appellant, and also constituted surprise. Appellant now insists that, by reason of said surprise, it should be granted a new trial, and that the trial court erred in refusing the same. A new trial will not be granted on the ground of surprise arising from the absence of a witness or from unexpected testimony, unless a claim to such surprise is promptly made during the trial, and a continuance asked in order that the party applying may secure the attendance of i the absent witness and produce evidence to meet the emergency. There is nothing in the record showing this to have been done. We therefore think
The judgment is affirmed.
Mount, O. J., Dunbar, Hadley, Fullerton, and Bud-kin, JJ., concur.
Boot, 3., having been of counsel, took no part.