Davies v. Oceanic Steamship Co.

Citations

• 89 Cal. 280
• 26 P. 827
• 1891 Cal. LEXIS 812

Syllabus

<p>Negligence — Action fob Death — Open Hatchway on Vessel — Carelessness in Loading — Master and Servant — Duty of Owner of Vessel — Pleading. — A complaint by an administratrix in an action for damages for a death caused by negligence, which alleges, in substance, that the defendant negligently left unprotected an open hatchway on its vessel, through which the deceased, who was lawfully employed on the vessel, was precipitated and killed, owing to his being struck by a barrel of lime by and through the carelessness and negligence of the defendant, and its servants and employees, in and about the loading of the vessel, states a cause of action, and shows a breach of duty on the part of the owner of the vessel.</p> <p>Id.—Evidence—Intoxication of Employee — Harmless Error.—The testimony of a witness, to the effect that the employee who had charge of the conducting of the barrel to the hatchway when the deceased was struck and thrown down the hatchway would get intoxicated when he “came off a trip,” though irrelevant, is not prejudicial to the defendant, where it also appears from the testimony of the same witness that such employee was not intoxicated at the time of the accident.</p> <p>Id. — Evidence of Negligence — Questions of Fact.—Where there is evidence tending to show that very shortly before the accident the deceased was engaged in calking near the hatchway, it is for the jury to determine from conflicting evidence what was his position at the time of the accident, and whether in the mode the lime was being hoisted the man employed could manage and control the barrels, and if so, whether, in view of all the circumstances, he was not negligent in attempting to convey the barrel to the hatchway without looking to see if it would in its passage strike the deceased, and whether the deceased was exercising the degree of caution required of him by his situation.</p> <p>Id. — Contributory Negligence — Anticipating Negligence.—The deceased was not guilty of contribu