Galvin v. Brown & McCabe , 53 Or. 598 ( 1909 )

Mr. Justice Slater

delivered the opinion of the court.

1. It appears from plaintiff’s testimony that the timber being loaded was newly sawed and very heaivy, and was of a particular class known as “mining timbers,” being 8x8 and 8x10 inches in dimensions, and 12 to 20 feet long. Two men, Wm. Lockington and John Murphy, who were experienced longshoremen in this particular class of work, were engaged in making the “sling loads,” under the direction of Fred R. Alexander, a gang foreman at hatch No. 1, of the vessel. The deck of the vessel was about on a level with the dock. The loads were prepared on the dock distant from the hatch 60 to 100 feet, over a portion of which the loads were dragged by the cable before it was lifted clear of the deck. The space over which the loads were dragged was rough and uneven, and the operation of dragging was by jerks, so that the loads were liable to be more or less disarranged. Lockington and Murphy had been working two days before the accident occurred, which happened about 10 o’clock in the morning, during which time they had been putting four timbers in each “sling load.” This was done by placing four timbers upon a cross-beam or block so that one end of the timbers would be raised from the floor, leaving four to five feet thereof free to permit the placing of a chain under and around them, to which the cable was attached. The four timbers were arranged in the form of a square, as near as the dimen-, sions would permit. When arranged in this manner the binding chain came in contact with a corner of each .piece, and, however the load might be jostled about, there was no chance for a timber to get out; but, by putting five timbers in, there would be an odd one, and a chance for one of them to get out. A short time before the accident Matthew Troy, the general superintendent of the corporation, came upon the dock and directed Lockington and Murphy to put five timbers into each “sling load” instead of four. To this Murphy objected, saying it was dangerous. Troy insisted, and, obeying the order, Murphy and Lockington were about to lift the fifth timber, and to place it on top of the four, forming a pyramid, when Troy directed them not to lift it, but to “roll it in on the side,” thereby making the load consist of three pieces on the bottom, and two on the top. It was from the third load so prepared that the middle timber of the bottom row fell, causing the injury. Immediately preceding or after the giving of this order Troy went to the men laboring at hatches 2 and 3, and gave similar orders, and like objections to the safety thereof were made. Eight men were working in the hold, stowing lumber lowered through hatch No. 1, four on each side thereof, who took every alternate load. They were required to be ready to receive the load as it came down and guide it onto a dolly, or roller, and get it out of the way before the arrival of the next load, which required the men to work rapidly, and to the utmost of their ability. Galvin was on the side of the hold opposite to the dock, and the load from which the timber fell was to have been lowered upon his side. A warning was given by the hatch tender to the men in the hold when the timber, which fell, started from the sling. Galvin, with the others, ran back into the “wings” of the hold to escape, and went as far as possible in the direction he was going, but the timber bounded over into the side of the vessel where he was and struck him. It is urged in support of the motion for a nonsuit: (1) That the evidence as to negligence was insufficient and conjectural; (2) that the accident resulted from a risk and danger naturally inci-. dent to the work, and voluntarily assumed by the deceased; and (B) that the negligence, if any, was that of a fellow servant.

That the accident was the result of a negligent act is affirmatively asserted in the answer, where it is alleged:

“That, while a sling load of five timbers of the dimensions above described was being loaded into said vessel, the same being a proper and suitable number of said timbers to be placed in said sling load, in accordance with the customs of loading vessels in this community and elsewhere with similar timbers, the said sling load of said timbers was so carelesly and negligently fastened and hooked by the co-employees of plaintiff’s deceased * * that one of the timbers slipped out from the said sling load and fell into the hold of said vessel, and then and there struck plaintiff’s deceased, thereby occasioning the injuries complained of.”

The issue, therefore, was narrowed to the question whether the slipping of the timber from the load was the result of Troy’s order given to the men, or of some negligence by Lockington and Murphy in fastening and hooking the chain which bound and held the timbers together. It must be conceded that these two persons were fellow servants of the deceased, as they were at the time engaged in a common enterprise; but we are equally clear that Troy, in giving the order, was acting as, and for, the master; and, if the order given by him was the primary cause of the injury, the concurring negligence, if any, of the two fellow servants of plaintiff’s deceased would not relieve the master. The master is liable for an injury to a servant which is caused by his own negligence and the concurrent negligence of a fellow servant, which would not have happened had the master performed his duty. Trickey v. Clark, 50 Or. 516 (93 Pac. 457); N. W. Fuel Co. v. Davidson, 57 Fed. 919 (6 C. C. A. 636).

2. It is claimed in this connection that there is a variance between the allegation of proof of negligence in this: That the cause of the accident is averred to be the order of Troy to load five timbers instead of four, while it is insisted that the proof is that Troy, not only ordered five timbers to be put into a “sling load,” but also directed the manner in which they should be put together and fastened with the chain, and that Murphy objected to the manner or method of arranging the timbers in the load, and not to the order to load five. It is also insisted that all of plaintiff’s witnesses testified that the method of loading five timbers was dangerous, and that the safe and proper way to load them was to pile them in the form of a pyramid, the fifth timber being on top and to hook the chain on top of the fifth timber, while Troy directed them to “roll the fifth stick in on the side” of the bottom layer, and that this was the cause of one of them slipping out, and for this reason it is claimed that there was no evidence to support the complaint. But this conclusion is not sustained by a careful inspection of the evidence. Lockington did testify, as pointed out, that, after Troy had given the order to put in five instead of four timbers, he and Murphy were about to take the fifth timber up and lift it on top “where it would be safe,” when Troy said to them: “Never mind, roll it in along the side there; it is all right.” Then Murphy said to Troy: “This is dangerous work.” But on cross-examination he makes it clear that the objection was not limited to the manner of arranging the five timbers ordered to be put into the load, for he testified that to put five timbers in a load in the manner he and Murphy were about to do, and by hooking the chain in the manner illustrated by him to the jury, was safe only where the load is near to, or at, the hatch; so that the load would be lifted with no danger of any timber slipping out; but he had previously explained that the load was made 60 feet or more away from the hatch, and had to be dragged 20 to 30 feet of that distance over a rough board roadway in a somewhat jerky manner, and says:

“Where they are dragging, like that, four timbers will never come out, where five will.”

Murphy’s testimony is to the same effect.

3. From the evidence it may fairly and reasonably be inferred that the placing of five timbers in the “sling load,” however they may have been arranged, and however the chain may have been fastened about them, was the proximate cause of one of them slipping out while the load was being conveyed to the hold of the vessel, and the. direction to put that number in the load having been given by Troy, with notice or knowledge of probable injury resulting, there was evidence upon which to submit the cause to the jury.

4. Because a contrary inference, in accord with the contention of defendants’ counsel, may also have been reasonably drawn from the same testimony, that does not thereby render the proof of negligence conjectural; but “the rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable, and the other unfavorable, to the defendant, a question is presented which calls for the opinion of the jury.

5. “If, however, there is no proof of any fact by which the defendants’ conduct may be ascertained, there is nothing for the jury. The mere proof of an accident, therefore, ordinarily raises no presumption of- negligence; but, where it is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn, the .case cannot be determined by the court as a matter of law, but must be submitted to the jury.” Geldard v. Marshall, 43 Or. 438 (73 Pac. 330).

6. Again, it is urged that the act of Troy in directing, the men to place five timbers in a “sling load” was the act of a fellow servant, with reference to a detail of the work for which the master was not responsible, and therefore the motion should have been sustained as to Brown & McCabe. A master is not required to superintend and direct the manner of the execution of mere details of the work; and, where such has been negligently done by a servant to the injury of a fellow servant, the master would not be liable for a failure to prescribe a rule or regulation. Wagner v. Portland, 40 Or. 389 (60 Pac. 985: 67 Pac. 300).

7. So in this case Brown & McCabe, having procured servants of experience to perform this particular work, could have intrusted the manner and method of the making of the “sling load” to such servants, and thereby freed itself from liability for injury, if any should have happened, to a fellow servant through their negligence.

8. The record shows that as long as the laborers were allowed to exercise their skill and judgment in the performance of their duties, the business was safely conducted. But in order that the loading of the vessel might be hastened and completed within the time contracted, and not to promote or secure the safety of its servants in the hold of the vessel, the master, through its general superintending officer, saw fit to give this order and direct the manner of its execution; for Troy, by his own testimony, is a stockholder and an officer of the corporation, being the general superintendent of its work, and at this particular time was superintending the loading of about 20 vessels in the harbor at Portland, and went from dock to dock, and ship to ship, to see that the work progressed to the satisfaction of the dock people, the charterers, and the defendant corporation.

9. The duty was upon the corporation to keep the place where Galvin was at work in a reasonably safe condition consistent with the character of work to be done by him; .and, if by its negligent act that duty was violated, it must assume the burden. Brick Co. v. Shanks, 69 Kan. 310 (76 Pac. 856).

10. In giving the order Troy was acting not only within his line of duty, but was, in fact, then the official representative of the corporation, and was performing an act with notice that it affected his duty towards the men in the hold of the vessel.

“If a master directs a servant to do certain work in a manner not reasonably safe, and the performance of the work in the manner directed is the proximate cause of injury to the servant, the master is guilty of actionable negligence.” 26 Cyc. 1153.

11. While there are some decisions that absolve the master even from the results of complying with the negligent order of a vice principal, where such order relates merely to the details of the work, yet it is said in 2 Lebatt, Master and Servant, § 541:

.“There is an overwhelming weight of authority to sustain the doctrine that the liability to which the master is declared to be subject wherever ‘the negligent act is a direct result of the exercise of power conferred by the master, in the performance of a duty devolving by law upon him,’ is predicable in the case of orders issued in respect to work, whatever may be the precise object to which those orders may have relation. It is, in fact, difficult to see what more indisputable example there can be of an ‘exercise of authority’ than the giving of such orders; and, for the purpose of affecting the master with liability in this instance, it is obviously quite immaterial whether the delinquent employee be a mere superior servant or a general or departmental manager. According to the great majority of the cases, therefore, all that is necessary to fix liability upon the master is that the negligent order which caused the injury should be proved to be incident to the performance of the duties of his position. The order may be a negligent one because the servant is directed to use dangerously defective appliances, or to work in an abnormally dangerous place, or to do work in a dangerous manner, or to do something which, under the circumstances, will render the place of work abnormally dangerous for a fellow servant.”

12. It is also urged that Galvin, being experienced in the work in which he was engaged, assumed the risk of an injury arising from the dangers naturally incident to his employment, and the risk of those extraordinary dangers which are apparent, or which he knows and appreciates. The statement of the rule may be conceded to be correct, but it does not imply that he also assumes those additional risks arising by the negligent act of the master after he has entered upon the performance of his work, and of which he has no knowledge, and by reasonable intendment could not be held to have known. 1 Labatt, § 2; Miller v. Inman, 40 Or. 161 (66 Pac. 713).

13. In Brown v. Oregon Lumber Co., 24 Or. 315 (33 Pac. 557), the plaintiff was employed in piling ties in a box car. The foreman ordered him to hurry up, and to pile the ties without blocking them, which he did, but by reason of the absence of the blocking, a pile of ties fell upon him, and for the injury suffered he sued. The court held that as the increased danger was evident, and must have been appreciated by the plaintiff, he, as a matter of law, assumed the risk. Likewise in Stager v. Troy Laundry Co., 38 Or. 480, 485 (63 Pac. 645, 646: 53 L. R. A. 459), it was said, in reference to the assumption by an employee of risks arising subsequent to the employment and during the course of the service, that: “If he voluntarily continues, however, without complaint or objection, after knowledge or notice of their existence, under conditions by which he is chargeable with an appreciation of the danger, and where ordinary prudence would require of him a different course, he is held also to take upon himself the responsibility entailed by the risk he continues to incur.” In each of these cases knowledge and appreciation of the increased risk by the injured servant form the basis of the opinion.

14. It is contended by counsel for defendants that, because two loads of five timbers had been lowered into the hatch where Galvin was working before the accident happened, he must have assisted in stowing one of these loads, and from this fact the conclusion is drawn that, as a matter of law, if there was anything inherently dangerous in five timbers being included in one load, Galvin, as an experienced longshoreman, must have known it, and, thus knowing and continuifig in the employment, he assumed the risk of being injured by reason of that number of timbers being lowered in each “sling load.” Assumption of risk, however, is not predicable from mere knowledge of conditions alone (1 Labatt, § 279a; Mitten v. Pacific Bridge Co., 51 Or. 538: 95 Pac. 196), but the circumstances must be such that no other inference than that he appreciated the danger is fairly deducible therefrom. We are not able to say, as a matter of law, under the circumstances of this case, as shown by the plaintiff’s testimony, that Galvin must have known that five timbers were being lowered at a time, as an inference from the bare fact that he may have assisted in stowing away one of such loads. In the great hurry and severe physical strain to which these men were subjected in the hold of the vessel, the fact that such was the case may have easily been unobserved. Much less would it be possible to say, as a matter of law, that, knowing of that fact, he, in the short space of time that intervened, and while under such strain, fully or at all contemplated the situation as it actually was upon the dock, and the circumstances that rendered dangerous the method employed in loading these timbers. The nonsuit was properly denied.

15. Whether the master and its servant can be joined as the perpetrators of a joint tort for an injury inflicted by the negligence of the servant, without the presence of the master, and without his express direction, is a question upon which the authorities do not agree. Reference may be made to 15 PL & Pr. 560, where the authorities upon each side of the controversy are given, and also to Warax v. Ry. Co. (C. C.) 72 Fed. 637, where they are generally and ably reviewed by Justice Taft. In this case, however, we are not under the necessity of determining that question, for it is conceded by all of the cases that, where the negligent act complained of was, in fact, or by legal intendment, the joint act of the principal and the agent, both can be jointly sued. Parsons v. Winchell, 59 Mass. 592 (52 Am. Dec. 745); Mulchey v. Religious Society, 125 Mass. 487; Page v. Parker, 40 N. H. 47. In Warax v. Ry. Co. (C. C.) 72 Fed. 637, much relied upon by the defendants, the question arose upon a construction of the complaint as to whether it stated facts amounting to a joint act or negligence, alleged to have been committed by the corporation and one of its engineers in backing some cars against other cars, injuring a brakeman. The averments of the petition were, in substance, that the engineer acted as the agent and servant of the defendant, and that the injury was caused by the defendant corporation by the movement of the engine. The court construed this to mean that the acts complained of were the acts of the defendant, only because committed by and through its agent and servant, the engineer, and that the conclusion that the acts were the result of the joint negligence of the defendant railroad company and the engineer, was a mere conclusion of law, based on the proposition that, where the engineer, through his negligence, does an injury in the scope of his employment, he and his principal are jointly liable in an action therefor. Under such facts it was held that they could not be jointly sued. But it is significantly remarked by that learned judge, at page 641 of 72 Fed., that: “If plaintiff intended to charge that the defendant was present by any corporate or superintending officer, so as to constitute what would be a personal interference in the acts complained of by the master, he should have made his position specific upon this point.” By which it was conceded that, where the act of negligence is the act of a corporate or superintending officer, as in this' case, it is the act of the corporation. For this reason no error was committed by the trial court in overruling the motion to require plaintiff to elect, or in denying the motion for a directed verdict.

16. Error is assigned because John Maher, Fred Jackson, and Thomas Began, who were working at hatches 2 and 3 of the same vessel, and in the same capacity as Lockington and Murphy, were allowed, over the defendants’ objections, to give in evidence conversations occurring between them and Troy immediately prior to the happening of the accident, and referring to orders or directions given them by Troy, which were of the same character as those given by him to Lockington and Murphy, and their response thereto that it was dangerous. It is urged that these conversations were not a part of the res gestae, and were collateral to the main inquiry, and highly prejudicial to defendants. .

“As a general rule, in an action by a servant for personal injuries, other accidents or acts of negligence are inadmissible in evidence to show negligence on the part of the defendant, unless shown to be closely connected with the accident complained of as to time, place, and circumstances.” 26 Cyc. 1429.

17. Evidence that other accidents had previously happened at the same place, under circumstances and conditions similar to those in the case on trial, is sometimes competent for two purposes: (1) To show that an appliance or place is defective or dangerous; and (2) to show that the defendant could reasonably have apprehended the happening of such accidents, against which it was their duty to guard or warn their employees. Wyman v. Orr, 47 App. Dic. 136 (62 N. Y. Supp. 195); Bailey v. R. W. & O. R. Co., 139 N. Y. 302 (34 N. E. 918); Shute v. Exeter Mfg. Co., 69 N. H. 210 (40 Atl. 391); Spaulding v. Forbes, 171 Mass. 271 (50 N. E. 543: 68 Am. St. Rep. 424); Wabash Screen Door Co. V. Black, 126 Fed. 721 (61 C. C. A. 639); Franke v. Hanly, 215 Ill. 216 (74 N. E. 130).

18. We think the evidence objected to was properly admitted for the purpose of showing notice or knowledge on the part of these defendants that the change in the method of doing the work as ordered by Troy was dangerous, and to rebut any inference or presumption that the order was the result of a mistake of judgment on his part, as to its safety; in other words, that it tends to prove that it was negligently done.

19. The objection urged to the competency of the testimony given in rebuttal by the witness Murphy, relative to an admission made to him by Fred B. Alexander, to the effect that the hoisting or slinging of five timbers in one sling was dangerous to the men in the hold, cannot be considered because it does not appear from the bill of exceptions that an objection was made to the admission of the testimony.

20. The same may be said as to the errors urged upon the instructions as given by the court, for no exceptions thereto appear in the record.

21. The defendants requested, and were refused, this instruction:

“If you find from the evidence that the injury to plaintiff’s intestate, Michael Galvin, was caused by the way and manner in which the five pieces of timber were chained together or by chaining five pieces together, instead of four, and in either case that the way and manner in which they were chained together was negligently performed by the fellow servants of plaintiff’s intestate, or that in joining five pieces together plaintiff’s fellow servants were negligent, but that such negligence caused or contributed to the death of Michael Galvin, then I instruct you that plaintiff would not be- entitled to recover.”

This, in effect, would amount to a directed verdict for the defendants, for it means that, although the jury may find from the evidence that the injury was caused “by chaining five pieces together, instead of four,” the plaintiff would not be entitled to recover. That five pieces were chained together, and that it was done by the order of Troy, as the superintending officer of the corporation, was not disputed at the trial. We have held that the circumstances under which it was given, as disclosed by the plaintiff’s case, were such that the inference might be fairly and reasonably drawn that the placing of five timbers in one load was the proximate cause of the injury, and that defendants, when giving the order, might reasonably have apprehended that injury would result therefrom. The instruction, even if correct in other respects, is too broad, and there was no error in denying it.

22. The remaining instruction requested by the defendants, upon which error is based because of a refusal to give it, was substantially given by the court in its general charge, and therefore no error was committed thereby.

Finding no error in the record, the judgment is affirmed. Affirmed.