[No. 35341. Department Two. Supreme Court March 17, 1961.]
WILLIAM THOMAS GAUNT, Appellant, v. THE ALASKA
STEAMSHIP COMPANY, Respondent.«1»
[1] Seamen - Negligence - Actions - Issues to be Proved - Affirmative Defenses - Failure to Prove Primary Negligence. In an action for personal injuries sustained by a seaman while working on the deck of a steamship belonging to the defendant, there was no merit in an assignment of error by the plaintiff that the defense of assumption of risk, which has been abolished in such actions by the Jones Act (46 U.S.C.A., § 688: 45 U.S.C.A., § 54), was raised by an instruction under the guise of contributory negligence, where the jury had found by special verdict that the defendant was not negligent, since if a jury finds that a plaintiff has failed to prove negligence on the part of the defendant, it is warranted in returning a verdict for the defendant without regard to affirmative defenses on the part of the defendant.
[2] Appeal and Error - Assignment of Errors - Necessity. In such an action, where the plaintiff has assigned no error to the jury's finding that the defendant was not negligent, the Supreme Court will not search the record to aid his cause.
[3] Trial - Conduct of Jury - Misconduct of Juror - Question of Fact. Whether a juror is guilty of misconduct is factual, and the determination of such fact by the trial court will not be disturbed except for abuse of discretion.
[4] Same - Discretion of Court. In an action for personal injuries sustained by a seaman while working on a steamship, the trial court did not abuse its discretion in finding a particular juror not guilty of misconduct, where upon the juror being accused of being intoxicated, the trial court considered all affidavits filed by both parties, and the trial judge himself, observed the juror carefully.
[5] Seamen - Personal Injuries - Standard of Care - Instructions. Evidence of the usual custom of seamen is competent to show what constitutes a reasonable standard of care, and a requested instruction was properly refused, where it minimized such rule and was, therefore, a request for a slanted instruction.
Appeal from a judgment of the Superior Court for King County, No. 527214, Frank D. James, J., entered July 20, 1959, upon the verdict of a jury rendered in favor of the defendant. in an action for personal injuries. Affirmed.
Warner, Pierce & Peden (B. Gray Warrier, of counsel), for appellant.
«1» Reported in 360 P. (2d) 354.
[3] See Ann. 58 A. L. R. (2d) 571; Am. Jur., New Trial, § 73.
848 GAUNT v. ALASKA STEAMSHIP CO. [57 Wn. (2d)
Bogle, Bogle & Gates and Ronald E. McKinstry, for respondent.
FOSTER, J. -
Appellant Gaunt, a seaman, sued the respondent for personal injuries sustained on its "SS Iliamna." Appellant was one of three seamen ordered to take down a turnbuckle and forward stay which required them to work near a deck cargo of creosoted and slippery telephone poles. While so engaged, the appellant fell, causing the injuries for which he sued. The action is based upon both the respondent's negligence and the unseaworthiness of its vessel.
The jury found by special verdict«2» that the injury was not caused by either respondent's negligence or the unseaworthiness of its vessel.
[1] Assumption of risk is abolished by the Jones Act. 46 U.S.C.A., § 688; 45 U.S.C.A., § 54. Appellant claims that an instruction raised the defense of assumption of risk under the guise of contributory negligence, but this completely ignores the special verdict that the respondent was not negligent.
Sulentich v. Interlake Steamship Co., 257 F. (2d) 316, 318 (7th C. A., 1958 answers this argument:
"These contentions are based primarily upon the false assumption that before the jury could return a verdict in favor of the defendant the defendant had to prove its affirmative defense by a preponderance of the evidence. That is not the law. If the jury found that the plaintiff had failed to prove negligence on the part of the defendant it was warranted in returning a verdict for the defendant even though it also believed that the defendant had failed to sustain the burden of its affirmative defense. . . ."
The assignment of error is without merit.
[2] The appellant assigns no error to the jury's finding
«2» Interrogatory No. 1: Was the injury, if any, to the plaintiff on August 10, 1958. while serving as a member of the crew of the S.S. `Iliamna' occasioned by
"(a) Negligence of the defendant?
"Answer: No (`Yes' or `No')
"(b) Unseaworthiness of the (`Yes' or `No')
"Answer: No (`Yes' or `No')"
Mar. 1961] GAUNT v. ALASKA STEAMSHIP CO. 849
that the respondent was not negligent. We do not search the record to aid his cause. Bristol v. Streibich, 24 Wn. (2d) 657, 167 P. (2d) 125.
[3, 4] Appellant contends that juror No. 7 was intoxicated on the final day of the trial and that it was error to deny a new trial. Early that day, the bailiff informed the trial court that some jurors had questioned the capabilities of the juror, which caused the trial judge thereafter to scrutinize the juror's actions very closely. Based upon such observation, the court concluded:
". . . I saw nothing on the last day of the trial after the bailiff had spoken to me which caused me to feel that she was under the influence of intoxicating liquor."
Whether a juror is guilty of misconduct is factual, and the determination of such fact by the trial court will not be disturbed except for abuse of discretion. Dibley v. Peters, 200 Wash. 100, 93 P. (2d) 720. The court considered all affidavits filed by both parties, and the court itself observed the juror carefully. There was no abuse of discretion. On the contrary, discretion was wisely exercised. Absent a finding that the juror was intoxicated, we need not consider, as the appellant urges us to do, the law relative to intoxication of jurors.
Finally, the appellant assigns error to the trial court's failure to give certain requested instructions, one of which dealt with assumption of risk which is rendered moot by the verdict. Two others dealt with subject matter properly covered by other instructions. A fourth instruction sought to separate custom and standard of care.
"I instruct you that usage and custom cannot justify negligence, nor serve to excuse a party from responsibility for carelessness. Methods employed in any trade or business, however long continued, cannot avail to establish as safe in law, that which is dangerous in fact.
"Conformity to custom is not in itself the exercise of due care. However, the want of conformity to established custom may be negligence where it appears that the custom was designed to promote safety.
"Therefore, you may consider evidence of usage and custom along with all the other evidence in the case in determining the issue of negligence and contributory negligence; remembering that what ought to be done is that which an ordinarily prudent man would have done under like or similar circumstances, whether it is customary to comply with that standard or not."
850 ROBISON v. SIMARD. [57 Wn. (2d)
[5] Evidence of the usual custom of seamen is competent to show what constitutes a reasonable standard of care. Cantrill v. American Mail Line, 42 Wn. (2d) 590, 257 P. (2d) 179. Appellant's requested instruction minimized this rule and was, therefore, a request for a slanted instruction. Such instructions are properly refused. Duplanty v. Matson Nav. Co., 53 Wn. (2d) 434, 333 P. (2d) 1092.
The judgment of the trial court is affirmed.
FINLEY. C. J., HILL, WEAVER, and ROSELLINI, JJ., concur.