Brown v. Intercoastal Fisheries, Inc.
| Decision Date | 01 July 1949 |
| Docket Number | 30959. |
| Citation | 207 P.2d 1205,34 Wn.2d 48 |
| Parties | BROWN v. INTERCOASTAL FISHERIES, Inc. |
| Court | Washington Supreme Court |
Department 1
Action by Robert B. Brown against the Intercoastal Fisheries, Inc. for injuries suffered by plaintiff in the course of his employment on defendant's fishing boat. Judgment for plaintiff, and defendant appeals.
Affirmed.
Appeal from Superior Court, King County; Chester A. batchelor judge.
McClure & McClure, Seattle, Edgar C. Snyder, Seattle, for appellant.
Bassett & Geisness, Seattle, for respondent.
This is an action brought under title 46 U.S.C. § 688, 46 U.S.C.A. § 688, the Jones Act, to recover damages for injuries suffered by respondent seaman in the course of his employment on appellant's fishingboat. His employer appeals from the $25,000 judgment.
On October 4, 1945 respondent shipped out of Seattle as a seaman on appellant's fishing vessel, 'John W.'. The master knew of respondent's inexperience.
En route to San Francisco, where the 'John W.' was to be based during the winter fishing season, heavy weather was encountered which opened a leak in the propellor shaft stuffing box. It became necessary to pump the bilges every few hours while underway and once daily while moored.
On reaching Fisherman's Wharf, San Francisco, and effort was made to 'take-up' on the stuffing box but this was ineffectual and it continued to be necessary to pump frequently.
On December 10, the vessel was secured at Fisherman's Wharf for the Christmas holidays and the crew, with the exception of respondent, left to spend Christmas in Seattle. The master, knowing that respondent intended to spend the holidays near San Francisco, asked him to call at the wharf periodically to see that the vessel was in good shape.
The details of his instructions are the crucial facts on this appeal. The jury could have found that the master ordered respondent (1) to inspect the vessel and her lines periodically, (2) to keep her pumped out, (3) not to start the engine himself under any circumstances but (4) if there was anything respondent couldn't handle, to get help from the 'American Star', a vessel moored just ahead.
On December 12, respondent inspected the 'John W.' and found her listing because of the water in her bilges although she had pumped dry December 10. He tried to operate the hand bilge pump and failed. Whereupon, attempting to make it work, he took it apart and could not reassemble it. Finally, after finding no experienced hands aboard the 'American Star' and satisfied that nothing more could be done that day, he departed.
When he returned the following morning, the 'John W.' was still listing and a coast guard crew was aboard pumping her out with a portable gasoline pump. The coast guard petty officer in charge ordered respondent to inspect the interior of the hull to locate the leak. Accordingly, respondent, unmindful that the leak was in the stuffing box and not in the hull, donned hip-length fishing boots, which he neglected to secure by straps to his belt, went below and inspected the interior of the hull. He found no leaks. Returning topsides, he informed the petty officer of his inspection and of the condition of the hand bilge pump. The petty officer suggested that respondent use the power driven bilge pump. Respondent refused, explaining that he had been ordered not to start the engine. The petty officer then suggested that respondent find someone who could operate it so as to relieve the coast guard from giving the vessel constant attention.
While the coast guard crew was still aboard respondent obtained assistance from Mr. Knutson, assistant engineer of the 'American Star'. Knutson, having decided not to repair the hand bilge pump, went below and started the engine. Once the engine was operating, Knutson had to familiarize himself with the vessel's pumping system in order to open the proper combination of bilge pump valves to cause the bilge pump to take suction. He want topsides to see if water was being discharged through the overboard discharge outlet. He left respondent standing on the narrow catwalk on the port side of the negine room near an exposed auxiliary shaft, holding an extension light which it has been necessary to use when the fixed overhead lights on the port side of the engine room would not operate.
This unhoused auxiliary shaft, one and a half inches in diameter, which drives the bilge pump is on the port side of the engine, running fore and aft parallel to the main shaft. It is located six inches outboard of the engine casing and nine inches above the catwalk upon which respondent was standing. Midway in the length of the shaft is an exposed coupling three to six inches in diameter with customary coupling bolts. This exposure is the chief specification of unseaworthiness constituting the negligence relied upon by respondent.
In the course of the morning's activities the tops of respondent's hip-length boots slipped down so that the top of each boot, with bootstrap dangling, was hanging loose around respondent's calves. While Knutson was topsides, respondent's left bootstrap, boot and pants caught in the whirling auxiliary shaft coupling pulling his left foot into the machinery in such manner that his left foot was crushed and torn off above the ankle.
Respondent has undergone two major operations and will require more surgery. He has required several adjustments and substitutions of artificial legs. He is now in normal health and is gainfully employed but will be unable to do work which will require him to stand or walk much. His income, since the injury, has been reduced and the jury reasonably could have found that his future earning power has been diminished. At the time of the accident he was twenty-eight years old with a life expectancy of thirty-six years.
Under eight assignments, the appellant contends generally that the court erred: (1) in not dismissing the action, (2) in not instructing the jury to return a verdict for the defendant, (3) in denying defendant's motion for judgment n.o.v., (4) in denying defendant's motion for a new trial, (5) in entering judgment on the verdict and more specifically that the court erred (6) in refusing to give an instruction and (7 and 8) to submit two special interrogatories.
As to the court's refusal to submit the special interrogatories, it is well settled that the submitting of special interrogatories is discretionary with the trial court and that refusal to submit requested interrogatories will not be reviewed on appeal. Salo v. Nelson, 22 Wash.2d 525, 529, 156 P.2d 664, 53 Am.Jur. 149.
The court refused to give the following requested instruction:
"Seaworthiness' is a relative term depending on the...
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