Lang v. Puget Sound Navigation Co. , 189 Wash. 353 ( 1937 )

STEINERT, C.J., TOLMAN, BEALS, and ROBINSON, JJ., dissent. Midnight of August 16-17, 1934, Archibald Sangster boarded, at Seattle, the S.S. "Iroquois," belonging to the Puget Sound Navigation Company, bound for Victoria, via Port Angeles. At five o'clock in the morning, he was found lying on the floor of his stateroom, suffering from multiple posterior fractures of the second, third, fourth, fifth and sixth ribs on the right side. At Port Angeles, he was removed from the ship and taken to a hospital, where it later developed that he had suffered internal abdominal injuries. From the latter developed peritonitis, from which he died August 21st.

Plaintiff brought this action, charging that Sangster's injuries and death were due to negligence on the part of the defendant. In its answer, defendant denied negligence, and set up the defense of contributory negligence, alleging that Sangster became heavily intoxicated, and that such intoxication was the proximate cause of his injuries and death. On the issues so made, the cause was tried to a jury, which returned a verdict for plaintiff. From judgment entered on the verdict, defendant appeals.

The assignments of error raise three matters for consideration: (1) The sufficiency of the evidence to make a case for the jury on the question of negligence; (2) the refusal of the trial court to give certain instructions requested by appellant; (3) the giving of certain instructions. First: As we read the record, we do not find any material conflict in the evidence, except in one particular, which we shall notice. The controversy, for the most part, centers about what reasonable inference, or inferences, may be drawn from admitted facts. There are some minor conflicts in the testimony, but we shall, in such instances, of course, state the facts in the light of the evidence most favorable to respondent.

Accompanying Sangster aboard the ship was one Robert Fee. They went directly to the purser's office, where Sangster purchased stateroom accommodations for both. They were assigned to stateroom 40, which was on the port side of the vessel. The stateroom was entered from an inside passageway. Opposite the door was a port hole. The room, following the side of the ship, was seven feet six inches long. Its width was six feet nine inches. On the aft end of the room, athwart ship, were two berths, one above the other. The outer edge of the lower berth was two feet nine and one-half inches from the wall; the outer edge of the upper, two feet six inches. Each berth had, along the outer side, a portable steel rail, designed to keep bedding in place, and also to keep the occupant of the berth from falling out in rough weather. There were two lugs at the end of each rail, which fitted into sockets attached to the walls of the room. When properly in place, it required a vertical lift of two and one-fourth inches to remove the rail from the sockets.

Against the wall opposite the berths, and toward the outward side of the ship, was a stationary wash bowl. Beneath this was a radiator, the valve wheel of which was set about eight inches out from the bowl toward the middle of the room. The distance between the wash bowl and a point midway of the outer edge of the lower berth was four feet three inches. The furniture of the room consisted of two wicker chairs.

After securing their reservation, Sangster and Fee went directly to the stateroom. It was agreed that Fee should take the lower berth and Sangster the upper. The latter left the room and the former went to bed. Fee did not see Sangster again until five a.m. At that time, he was awakened by a groaning noise, and found Sangster lying on the floor, his head toward the wash bowl and his feet toward the door. One end of the steel rail of the upper berth was resting on the floor on the outward side of the room. Here we come to the one substantial conflict in the evidence. Members of the crew testified that it was the rail of the lower berth that was on the floor. Conceding that this would make some difference with respect to liability (which is doubtful), we are bound to accept respondent's version in considering the sufficiency of the evidence to make a case for the jury. Fee asked Sangster what happened. Sangster said: "I fell from —." He got no further.

[1] We understand appellant to contend that these facts call for application of the rule that, where injury might be attributed to one of several causes, for one or more of which there would be no liability, the jury will not be permitted to speculate as to which of the causes brought about the injury. Application of the rule, however, does not place upon the person injured the burden of excluding every possible cause of the accident for which the defendant would not be liable. He is not required to prove negligence beyond a reasonable doubt. St.Germain v. Potlatch Lumber Co., 76 Wn. 102, 135 P. 804;McGinn v. North Coast Stevedoring Co., 149 Wn. 1,270 P. 113. In the former case, the rule is stated:

"It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the accident causing the injury happened in such a way as to fix liability upon the person charged with such liability, than it is that it happened in a way for which the person so charged would not be liable. ``There are very few things in human affairs, and especially in litigation involving damages, that can be established to such absolute certainty as to exclude the possibility, or even some probability, that another cause or reason may have been the true cause or reason for the damage, rather than the one alleged by the plaintiff. But such possibility, or even probability, is not to be allowed to defeat the right of recovery, where the plaintiff has presented to the jury sufficient facts and circumstances surrounding the occurrence as to justify a reasonable juror in concluding that the thing charged was the prime and moving cause.' In other words, the plaintiff is only required to satisfy the jury, by a fair preponderance of the evidence, that the accident causing the death occurred in the manner he contends it did."

Now, In the light of the rule as above stated, we do not think the manner or cause of the accident is the subject of speculation at all. It seems to us that the only reasonable inference that can be drawn from the evidence is that, in attempting to get into the upper berth, Sangster took hold of the railing, which gave way, and he fell backward against the wash bowl. All the facts and circumstances substantiate these inferences — the railing on the floor; the position in which Sangster was lying; the location and character of his injuries.

[2] Furthermore, the giving way of the railing raised a presumption of negligence. The burden then fell upon appellant to show that the giving way of the railing was not due to its negligence. Lane v. Spokane Falls N.R. Co., 21 Wn. 119,57 P. 367, 75 Am. St. 821, 46 L.R.A. 153; Wodnik v. Luna ParkAmusement Co., 69 Wn. 638, 125 P. 941, 42 L.R.A. (N.S.) 1070; Hayesv. Staples, 129 Wn. 436, 225 P. 417; Highland v. WilsonianInv. Co., 171 Wn. 34, 17 P.2d 631. The presumption of negligence is overcome only when the explanation shows without dispute that the happening was due to a cause not chargeable to a defendant's negligence. Scarpelli v. Washington Water PowerCo., 63 Wn. 18, 114 P. 870. No explanation being offered, the jury was warranted in inferring that the railing gave way because the lugs at the end had not been properly placed in the sockets on the wall.

[3] Second: Appellant offered evidence to the effect that Sangster was intoxicated when he came aboard; that he was last seen about four o'clock, before going to his stateroom, and that he was then very drunk. The appellant requested two instructions of the same import, one of which reads as follows:

"If you find from a fair preponderance of the evidence that the decedent, Captain Archibald Sangster, was intoxicated or under the influence of intoxicating liquor, at the time of his alleged injuries, and that such condition on the decedent's part, and not the alleged negligence of the defendants or any of them, was the proximate cause of the decedent's alleged injuries and death, then and in that event your verdict must be for the defendants."

As we have seen, Sangster died of peritonitis, which was the direct consequence of his injuries. It is not intimated that alcoholism was in any sense the direct cause of death. Yet appellant seems to argue that, wholly independent of contributory negligence, intoxication may be considered the proximate cause of death of one who sustains fatal injuries when in that condition. The argument, as we understand it, is predicated on the theory that something (or anything) of a traumatic nature is more likely to happen to a drunken man than to a sober man, and that intoxication may be considered as the proximate cause of injury or death even in the absence of evidence connecting the intoxication with the traumatic event. This is not the law — at least not in this jurisdiction.

[4] Third: The court instructed the jury that intoxication of the deceased, taken alone, would not absolve appellant of negligence; that to preclude recovery, there must have been some negligence on the part of Sangster materially contributing to his injury; that intoxication, however, was a circumstances to be taken into consideration in determining whether or not he was negligent. These instructions with respect to intoxication conformed to the rules laid down by this court in Lawson v.Seattle Renton R. Co., 34 Wn. 500, 76 P. 71, and inConrad v. Graham Co., 54 Wn. 641, 103 P. 1122, 132 Am. St. 1137. In the former case, the court quoted with approval fromDenver Tramway Co. v. Reid, 4 Colo. App. 53, 35 P. 269, as follows:

"Counsel says, ``This instruction commences by advising the jury that intoxication in itself, as a matter of law, is not such negligence as will bar his recovery in this action,' and ends by advising the jury that ``it must appear that the plaintiff did not exercise ordinary care, and that, too, without reference to his inebriety. The question is whether or not the plaintiff's conduct came up to the standard of ordinary care, not whether or not the plaintiff was drunk.' It requires considerable ingenuity to find fault with the language cited. It, in effect, properly states the law to be that the questions being tried were the negligence of the defendant and the contributory negligence of the plaintiff; not whether the plaintiff was at the time intoxicated. That drunkenness on the part of plaintiff would not relieve the defendant from liability, if guilty of negligence; and that, drunk or sober, if the plaintiff, by want of ordinary care, contributed to the injury, he must assume such responsibility, regardless of his condition. We cannot well see how it could have been different. If drunk, he was held responsible for his negligence; and, if drunk, it can hardly be contended that it gave the defendant, for that reason, the right to kill or maim him, but, if known, imposed greater care on the defendant."

The court gave an instruction stating the doctrine of resipsa loquitur, to which appellant excepts. That the issue of negligence was properly submitted upon that theory, we think sufficiently appears from what we have said with respect to the sufficiency of the evidence to make a case for the jury.

Judgment affirmed.

MAIN, HOLCOMB, MILLARD, and GERAGHTY, JJ., concur.