Rank v. Alaska S.S. Co., 32882

Decision Date30 September 1954
Docket NumberNo. 32882,32882
Citation274 P.2d 583,45 Wn.2d 337
CourtWashington Supreme Court
PartiesElmer J. RANK, Respondent, v. ALASKA STEAMSHIP COMPANY, a corporation, Appellant.

Bogle, Bogle & Gates, Edward S. Franklin, Seattle, for appellant.

Kennett, McCutcheon & Soderland, Seattle, for respondent.

MALLERY, Justice.

This is an action under the Jones Act, 46 U.S.C.A. § 688.

The plaintiff was thirty years old and had been a sailor for ten years. He had made several previous voyages for the defendant. On March 19, 1953, he was injured while unloading cargo on defendant's ship Nadina at Seward, Alaska. The cargo was one-hundred-pound paper sacks of fertilizer stowed in tiers nine and ten sacks high. After the removal of several tiers, the crew came to the tier in question. The bottom sack had not been laid flat, which would have provided a stable support for the tier, but on edge in a slanting fashion so that upon the removal of the lateral support of the other tiers it suddenly toppled over on plaintiff, injuring his left leg permanently.

The jury returned a verdict in the amount of $20,200, and the defendant appeals.

The manner of stowing the tier in question by appellant company was contrary to the approved custom, and was dangerous because of its resulting instability. The jury had a right to find that this manner of stowage was negligence on the part of appellant.

This disposes of appellant's assignments of error directed to the trial court's refusal to dismiss the action, direct a verdict, or grant a judgment n. o. v.

The authorities marshaled by appellant touching its opportunity and duty of inspection to discover the existence of the dangerous tier, are beside the point. The tier was not stowed by some other party, but by the appellant itself. It is conclusively presumed to know what it did.

The appellant's next assignment of error is:

'The lower court erred in withdrawing appellant's affirmative defense of contributory negligence from the jury and refusing to give appellant's proposed instructions Nos. 4 and 5.'

The appellant does not set out the instructions in which the defense of contributory negligence was withdrawn from the jury, as required by Rule on Appeal 43, 34A Wash.2d 47, as amended effective January 2, 1953. We will, therefore, not consider it.

While appellant sets out its proposed instructions Nos. 4 and 5, it took only the following exception to their refusal by the court: 'We also except to the failure of the Court to give Defendant's Instructions 4 and 5 * * * relative to contributory negligence and the duty of the jury to apply the rule of comparative negligence.' This does not meet the requirement of Rule of Pleading, Practice, and Procedure 10, 34A Wash.2d 75, which provides:

'Exceptions to a charge to a jury, or to a refusal to give as a part of the charge instructions requested in writing, may be taken in the absence of the jury by any party at the conclusion of the charge and before reception of the verdict. Such exceptions may be either oral or in writing, and shall be noted by the court, and shall specify the paragraphs or particular parts of the...

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13 cases
  • Osborn v. Chapman
    • United States
    • Washington Supreme Court
    • July 11, 1963
    ...Wash.2d 412, 325 P.2d 888; Cauble v. Dahl, 48 Wash.2d 440, 294 P.2d 697; Rank v. Alaska Wash.2d 26, 290 P.2d 697; Rank v. Alaska Steamship Co., 45 Wash.2d 337, 274 P.2d 583; Shields v. Paarmann, 41 Wash.2d 423, 249 P.2d 377; Ballard v. Yellow Cab Co., 20 Wash.2d 67, 145 P.2d 1019; Glick v. ......
  • Koon v. Koon
    • United States
    • Washington Supreme Court
    • July 11, 1957
    ...raise it upon appeal for the first time. Appellants have not done their part in saving the lower court from error. Rank v. Alaska S. S. Co., 45 Wash.2d 337, 274 P.2d 583.'6 RCW 26.08.090; RCW 26.08.180.7 Murray v. Murray, 26 Wash.2d 370, 174 P.2d 296; Duncan v. Duncan, 25 Wash.2d 843, 172 P......
  • State v. Christensen, 40177
    • United States
    • Washington Supreme Court
    • April 10, 1969
    ...We require exceptions to the instructions to be adequately stated or they will not be considered on appeal. Rank v. Alaska S.S. Co., 45 Wash.2d 337, 274 P.2d 583 (1954). The reasoning supporting the rule on instructions ineluctably supports such a rule on motions. If vague, indefinite and i......
  • Lasser v. Grunbaum Bros. Furniture Co., 32929
    • United States
    • Washington Supreme Court
    • April 1, 1955
    ...a time when the court can, if it so desires, correct any error which it may feel has been made in the instructions. Rank v. Alaska Steamship Co., Wash.1954, 274 P.2d 583; Shields v. Paarmann, 1952, 41 Wash.2d 423, 425, 249 P.2d 377; State v. Severns, 1942, 13 Wash.2d 542, 125 P.2d Whether t......
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