Nelson v. S. Willey Steamship & Navigation Co.

Citations

• 26 Wash. 548
• 67 P. 237
• 1901 Wash. LEXIS 685

Syllabus

<p>CONTRIBUTORY NEGLIGENCE ■ — • WHEN QUESTION EOR JURY.</p> <p>The question of contributory negligence is properly one for the jury, where reasonable men may fairly arrive at different conclusions from the state of facts proven.</p> <p>MASTER AND SERVANT-ACTION BY SERVANT EOR PERSONAL IN-</p> <p>JURIES ■— VARIANCE.</p> <p>In an action for negligence in which the complaint alleges that “the first mate gave the order to the deck hands to take in the gang plank; that before said deck hands could get to the sides of said gang plank to lower the same to the deck as was customary, without warning said officer untied the rope which held said gang plank to the dock,” causing it to slide and occasion the injury complained of, evidence that the captain blew a short blast of the whistle, which means to take in the gang plank, and that the mate, without any warning, let the plank go so that it came down on plaintiff, constitutes but an immaterial variance, since the order was given the mate to give to the crew, and was so understood and acted upon by them.</p> <p>SAME- — ■ VICE PRINCIPAL ACTING AS EELLOW SERVANT-LIABILITY OE</p> <p>MASTER EOR NEGLIGENCE.</p> <p>The failure of a vice principal to warn the servant of impending danger known to him, but not to the servant, will render the master liable for injuries resulting in consequence, though the vice principal at the time may be performing the duty of a fellow servant instead of a duty pertaining to his employment as a vice principal.</p> <p>SAME —• INSTRUCTIONS.</p> <p>In an action by a deck hand to recover for injuries received by reason of the negligence of the first mate of a vessel, an instruction that the mate was a vice principal and not a fellow servant with the plaintiff, was proper, where it was alleged and admitted by the pleadings that the mate was authorized by defendant to hire and discharge the deck hands, with authority to superintend and direct them in and about the work for which they were employed.</p>