Westall v. Osborne

Citations

• 115 F. 282
• 53 C.C.A. 74
• 1902 U.S. App. LEXIS 4207

Syllabus

<p>1. Master and Servant — Defective Appliances — Negligence of Fellow Servant — Declarations—Res Gestae — Evidence.</p> <p>Where a stevedore on a steamship, while removing a hatch preparatory to loading the vessel, fell into the hold, owing to the giving way of the hatch cover on which he was standing, evidence of declarations of the stevedore and winchman, who were assisting him, made immediately after the accident, and while he was being removed from the hold, tending to show that the accident was caused by their carelessness instead of the defective appliances of defendant, as alleged by plaintiff, should, be received as part of the res gestse, though their attention was not called to such statements on cross-examination. 1</p> <p>2. Same — Improper Exclusion of Evidence — Prejudice—New Trial.</p> <p>Where, in an action to recover for an injury which plaintiff claims resulted from defective appliances furnished by his employer, evidence tending to show that the accident was caused by the carelessness of fellow servants is improperly excluded, and where it is not apparent that its rejection was not prejudicial to defendant, this is reversible error.</p>