Anelich v. The Arizona

• Citation: 183 Wash. 467,49 P.2d 3
• Decision Date: 05 September 1935
• Docket Number: 25626.
• Court: United States State Supreme Court of Washington
• Parties: ANELICH v. THE ARIZONA et al.

49 P.2d 3

183 Wash. 467

ANELICH v. THE ARIZONA et al.

No. 25626.

Supreme Court of Washington

September 5, 1935

Department 2.

Appeal from Superior Court, Snohomish County; Relph C. Bell, Judge.

Action by Antonia Anelich, as administratrix of the estate of Mario Anelich, deceased, against Purse Seine fishing vessel Arizona, Antone Mardesich, and others. From a judgment for the plaintiff, the defendants appeal.

Judgment affirmed.

Ralph S. Pierce, Edwin J. Cummins, and Gordon H. Sweany, all of Seattle, for appellants.

Charles A. Wallace and Wilbur Zundel, both of Seattle, for respondent.

BLAKE Justice.

This is an action brought under the Jones Act (41 Stat. 988) to recover damages resulting from the injury and death of plaintiff's intestate while hauling in a purse line by means of a power winch on the purse seine fishing vessel Arizona. The vessel, its owner, Antone Mardesich, and its master, Peter Mardesich, were all made parties defendant. The action is predicated upon the negligence of the defendants in that: (a) The clutch on the winch, by which it was connected and disconnected with the drive shaft, was old, worn, and defective; (b) defendants failed to exercise reasonable care in providing medical attendance and hospitalization for deceased after he was injured.

The defendants joined issue, denying negligence and setting up by way of affirmative defenses, contributory negligence and assumption of risk. The court submitted the case to the jury on the issues of negligence and contributory negligence, but declined to submit the defense of assumption of risk holding, as a matter of law, that such defense was not available to defendants under maritime law. The jury returned a verdict for plaintiff in the sum of $10,500. From judgment on the verdict, defendants appeal, making fifteen assignments of error. We shall attempt to discuss these in what appears to us to be the order of their importance.

In respect to assumption of risk, we understand appellants to contend: (a) That the common-law doctrine of assumption of risk has always been applicable to torts at sea; (b) that if not, it has been made so by the terms of the Jones Act.

It is too well settled for discussion that the vessel and its owners are liable for indemnity, under general maritime law, for injuries sustained by seamen in consequence of a failure to supply and keep in order proper appliances appurtenant to the ship. For failure to do so, the ship and owner, not the seamen, assume the risk. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523; Storgard v. France & Canada S. S. Corporation (C. C. A.) 263 F. 545; Henry Gillen's Sons Lighterage v. Fernald (C. C. A.) 294 F. 520; Grimberg v. Admiral Oriental S. S. Line (D. C.) 300 F. 619; Grant v. United States Shipping Board Emergency Fleet Corporation (C. C. A.) 22 F. (2d) 488; Howarth v. United States Shipping Board Emergency Fleet Corporation (C. C. A.) 24 F. (2d) 374; Ives v. United States (C. C. A.) 58 F. (2d) 201.

The argument that the common-law doctrine of assumption of risk is made available as a defense by the Jones Act is this: That act, by its terms, provides that the seaman, or, in case of death, his personal representative, may maintain an action at law, in which case, 'all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.' Title 46 USCA § 688. The argument proceeds: Since the doctrine of assumption of risk is available under the Federal Employers' Liability Act (45 USCA § 51 et seq.), it is, by reason of the above-stated terms of the Jones Act, made available in actions brought by seamen. The position of appellants is against reason and authority. Hansen v. United States (D. C.) 12 F. (2d) 321; States S. S. Co. v. Berglann (C. C. A.) 41 F. (2d) 456. The effect of the Jones Act was to enlarge, rather than restrict, the rights of seamen injured in the course of their employment. Its avowed purpose was to afford them an action at law, with a right of trial by jury--a right which they did not have in admiralty. The act does not purport to change the rules of maritime law, by which their rights were theretofore determined. The result, if appellants' position were accepted, would be to defeat the very right granted by the Jones Act; for the injured seaman would hardly hazard the chance of his action at law being defeated under the doctrine of assumption of risk, when he could go into admiralty and escape the hazard of that defense.

Appellants contend that, in any event, there was no causal connection between the defective clutch and the injury sustained by plaintiff's intestate. The crew, with the exception of the engineer, were Slavonians, and ordinarily used their native language about their work. The engineer did not understand the Slavonian language. The winch was located about midship. It had two drums--forward and aft. Near the forward drum was a lever by which the clutch of the winch was engaged and disengaged from the drive shaft. The shaft was driven by a semi-Disel engine, which furnished all the power for the vessel. There was a clutch at the engine designed to engage and disengage all machinery, including the propeller shaft.

At the time of the accident, the crew was engaged in hauling in the purse lines. There were two such lines which were brought onto the vessel through blocks attached to a davit. Thence, the lines extended to the aft and forward drums of the winch, respectively. Three or four turns of the line were had around the drum. A man pulling at the rope created the friction necessary on the drum to haul in the line. The deceased was so engaged on the aft line. He was heard to shout in his native tongue: 'Oh, Mother of Mine, my leg is caught.' The winch was stopped by the engineer, who disengaged the clutch controlling all of the machinery at the engine. Before the machinery was stopped, however, deceased's leg was pulled onto the aft drum of the winch, where it was broken and crushed between the purse line and the drum. The leg was so firmly caught that, in order to release it, the line had to be cut from the drum with an axe. While there was conflict in the evidence, the jury were warranted in finding that the clutch was so old, worn, and defective that it would slip out under the pull of a heavy load, unless the handle of the lever was so braced as to hold it. It was not denied that there was a forked stick kept tied to the starboard bitt of the winch for that purpose. It was used by placing the forked end against the handle of the lever, after the clutch was enmeshed, and the other end against cleats nailed onto the bitt. There was evidence to the effect that this stick was not being used at the time of the accident. We think, however, that there was sufficient circumstantial evidence for the jury to find that it was. The owner of the vessel was standing within a few feet of the clutch lever, yet he did not disengage the clutch. He shouted to the engineer, who stopped the winch by disengaging the clutch at the engine. It is contended that the winch was stopped just as quickly in this manner as it could have been by disengaging the clutch at the winch. This, it seems to us, was for the jury to say. The engineer could not understand deceased's cry of distress. The owner of the vessel did. It is reasonable to believe that, had the stick not been used, he could and would have reached the clutch lever in the time it took him to call to the engineer. Had he done so, it is reasonable to believe that the winch could have been stopped Before deceased's leg got wound up in the drum.

Appellants contend that the court erred in receiving evidence of the condition of the clutch at the time of trial, some fourteen or fifteen months after the accident. An engineer, having just examined the clutch, testified that it was so worn and defective that it would not hold, under the pull of a heavy load, without pressure against the handle of the lever; that the forked stick was designed to exert the pressure on the handle necessary to hold the clutch enmeshed; that the condition of the clutch was the result of many years of use; and that, in his opinion, the clutch was in practically the same condition at the time of the trial as it was at the time of the accident. Conceding the testimony inadmissible, the error in...