Parker v. Washington Tug & Barge Co.

• Decision Date: 27 May 1915
• Docket Number: 12229.
• Citation: 148 P. 896,85 Wash. 575
• Court: Washington Supreme Court
• Parties: PARKER v. WASHINGTON TUG & BARGE CO.

148 P. 896

85 Wash. 575

PARKER v. WASHINGTON TUG & BARGE CO.

No. 12229.

Supreme Court of Washington

May 27, 1915

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Albert E. Parker against the Washington Tug & Barge Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jas. Kiefer, of Seattle, for appellant.

Wright Kelleher & Caldwell and Robt. H. Evans, all of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover damages sustained by a scow or barge while in the possession of the defendant. After the issues were framed, the cause was tried to the court and a jury. At the conclusion of the plaintiff's testimony the defendant interposed a motion for a nonsuit, which was overruled. At the conclusion of all the evidence the defendant challenged the sufficiency of the evidence to sustain a verdict, and moved the court for a directed verdict. Neither the challenge to the evidence nor the motion for a directed verdict were sustained. The jury returned a verdict for the plaintiff in the sum of $1,512.15. The defendant interposed a motion for judgment notwithstanding the verdict, and in the alternative for a new trial, both of which were denied. A judgment was entered upon the verdict. The defendant appeals.

The facts, so far as necessary to an understanding of the questions to be noticed are these: During the month of December, 1912, and for some time prior thereto, the respondent was the operator and owner of a sand plant at Eagle Harbor in Kitsap county, Wash. The appellant was engaged in the business of towing barges and other craft upon Puget Sound and adjacent waters. During the summer and fall of the year 1912 the Anderson Construction Company had a contract for the construction of certain street paving in the city of Victoria, B. C. This company being unable to complete its contract, it was succeeded by the M. P. Cotton Company, Ltd., of Vancouver, B. A. After the contract was taken over by the Cotton Company, one L. S. Wood, the secretary of the appellant company, at the request of the Cotton Company, went to Victoria, and met M. P. Cotton of that company. At this time it was agreed between the Cotton Company and the appellant that the former would pay 50 cents a yard for paving sand, and 50 cents a yard for towing the same from Eagle Harbor to Victoria. After Wood returned from Victoria, he either went to see the respondent, or had a talk with him over the phone. In any event, whatever the manner of the conversation, it was agreed that the respondent, Parker, would furnish the sand, f. o. b. Eagle Harbor, billed direct to the M. P. Cotton Company; that the appellant would deliver its own scows at the sand plant to be loaded, and when loaded would tow the same to Victoria. The respondent had no contract with the Cotton Company, and never had any conversation with any representative of that company relative to this matter. Some time early in the month of December, 1912, the Cotton Company wired both the appellant and the respondent that, owing to the lack of sand, they had been compelled to shut down the work. These telegrams were urging an early delivery of the sand. At this time the defendant company, according to the testimony of Wood----

'was very busy; the weather uncertain, stormy at times; scows were held up, and the defendant company hard-pushed for scows enough to transact the business; and had telegrams and letters from Cotton urging for the sand, saying that they were shut down for want of it.'

The defendant company, not being able to supply its own scows to be loaded at the sand plant, contracted with the respondent for the use of his scow called the 'Big Sandy.' The respondent was to load the scow with 250 yards of sand. After it was loaded, the appellant was to tow it to Victoria with its steam tug Challenge, or some other of its tugs of equal capacity. For the use of the scow upon this trip the respondent was to be paid by the appellant one-third or one-fourth of the towage charge which he would collect from the Cotton Company; the exact amount is immaterial. After this arrangement was made, the respondent loaded the 'Big Sandy' with 250 yards of sand, and notified the appellant of this fact. At this time the tugs of the appellant company were all busy, and its tug Challenge would not be in for several days. The M. P. Cotton Company being very desirous of having the sand as soon as possible, and urging its immediate delivery, the appellant company contracted with the Elliott Bay Tug & Barge Company to tow with the gasoline launch Monaghan the Big Sandy, together with a scow loaded with brick, to Victoria. The tug Monaghan was capable of developing 80 or 90 horse power. The steam tug Challenge had a horse power of 185. Up to this point the facts are not in dispute. Wood testified that he was authorized by the respondent to secure some other towing company to take the Big Sandy to Victoria. This the respondent denies, and he testified that he had no knowledge that the scow was to be towed by any other tugboat than the Challenge. On December 16th, after taking in tow at Seattle a scow loaded with brick, the tug Monaghan proceeded across the sound to Eagle Harbor, arriving there at about 2 o'clock p. m. of that day. After fastening the hawser or tow line to the Big Sandy, the tug proceeded on its way to Victoria. It left Eagle Harbor about 3:30 and arrived at Marrowstone Point or Flagler at 5:30 the next morning. Here it waited for a favorable tide, and departed from Flagler for Victoria at 10:30 o'clock on the morning of the 17th of December. While crossing the strait of Juan de Fuca, at about 3 o'clock in the afternoon, a high wind arose, and the sea became very rough. Some time later in the afternoon, while the storm was still prevailing, the Big Sandy broke her tow line. Owing to the roughness of the sea, it was impossible to again take the scow in two. The tug with the scow loaded with brick proceeded towards Victoria, arriving there at about 6:30 o'clock in the evening. Subsequently the Big Sandy was found upon a beach to which she had floated, and was towed into Victoria. Some days later the respondent was notified by Wood that the scow had been wrecked, and at another time was further notified that it was at Ballard. A few days after this the respondent was notified by the Ballard Marine Railway Company that the scow was afloat in the sound. Thereupon the plaintiff employed a tug to take the scow in tow and bring it to Eagle Harbor. The present action was brought for the purpose of recovering damages which the scow sustained. No complaint is made as to the amount of the verdict returned.

The appellant's brief contains 27 assignments of error, and in the portion of the brief devoted to the argument, 17 points are separately stated and argued.

It is first claimed that the court erred in denying the appellant's motion for a nonsuit. As appears from the facts stated, the appellant did not stand upon its motion, but after the same was overruled, presented its evidence. Where a motion for a nonsuit is denied, and the appellant does not stand upon the motion, but presents its evidence, the case will thereafter he reviewed upon the entire testimony. By failure to stand upon the motion for a nonsuit, that motion is waived. Ryan v. Lambert, 49 Wash. 649, 96 P. 232.

Considering the case upon all the evidence, the appellant insists that its motion for a directed verdict should be sustained. One of the grounds of negligence charged in the complaint was the attempt to tow with a gasoline tug of 80 horse power the two scows across the strait of Juan de Fuca at the time of year mentioned, under the weather conditions then prevailing. The evidence introduced on behalf of the plaintiff tends to support the claim of negligence as stated in the complaint. The evidence introduced on behalf of the appellant tends to support its position that it at all times acted in accordance with what is termed 'good seamanship,' and exercised reasonable care and caution. The appellant's evidence tends also to support its claim that the barge was defective, and that the accident was brought about by this fact. This is contradicted by the respondent's evidence. The question whether or not the appellant in attempting to tow the two barges across the strait with the gasoline tug Monaghan was exercising reasonable care and skill was obviously a question of fact for the jury to determine. Upon this question the appellant in its brief states that the----

'respondent certainly failed to sustain the burden of proof, requiring him to prove the negligent acts complained of in his complaint, and also to establish that the loss of his barge was occasioned by such negligent acts.'

It has become the settled law in this state that the finding of a jury upon a disputed question of fact, where there is substantial evidence to support the verdict will not be disturbed upon appeal. Allard v. Northwestern Contract Co., 64 Wash. 14, 116 P. 457; Druglis v....