Mullan v. Philadelphia & Southern Mail Steamship Co. , 1875 Pa. LEXIS 90 ( 1875 )

Mr. Justice Woodward

delivered the opinion of the court, February 15th 1875.

The accident resulting in the injury of which the plaintiff complains, occurred while he was employed as one of a gang of stevedores in unloading the steamship Wyoming, belonging to the defendants. In hoisting two tierces of rice out of the hold of the vessel, the 'rope the workmen were using parted, and the casks fell on the plaintiff. The hands employed were under the charge of John Corcoran, the chief stevedore. He engaged and discharged them at his pleasure. He had charge also of the machinery used in unloading the ship. The rope, where it parted, had been spliced; it was used, as the witnesses explained, as a single fall; the weight at the end caused it to swing round and untwist, and the parting at the splice was the result. On the ground that the injury was the consequence of the negligence of Corcoran, and that he was a fellow workman of the plaintiff, the court below directed a nonsuit.

There was evidence which would ordinarily be referred to a jury that the rope was unfit for the purpose for which it was used. While it was not asserted that its strength was weakened by-splicing, the witnesses united in saying that it should have been used as a double fall, and that there was not enough of it for that purpose. One of them said, that “ whei’e a long splice runs over a pulley, the pieces where the end are tucked in will chafe against tbe pulley’s sides and that “ when a spliced rope is so used that a heavy weight is at one end, the rope will untwist, and the more it does that the more likely is the splice to come apart. When a single cargo fall is used, the weight at one end has a tendency to make the rope untwist, that is, if the weight is allowed to swing round, as it will naturally do. But where a double fall is used, both ends are made fast, and there can be no untwisting of the lag of the rope.” Another witness, after stating the liability of the lumps in a long splice to chafe in going through a pulley, said: “ In unloading the rice, I think a single fall with a splice ought not to have been used.”

In order to warrant the nonsuit, it was requisite that it should appear affirmatively, not only that the accident was caused by neglect of duty on the part of Corcoran, but that he and the plaintiff held the relation to each other of servants in the common employment of the defendants. Admittedly, it is the duty of every employer of laborers to exercise reasonable care in providing them with safe machinery, suitable tools and appliances adapted to the uses for which they are designed. Did the defendants discharge their duty ? On their part, it is insisted that they did. It is said that they intrusted Corcoran with the power to select all the machinery necessary for the work he was employed to superintend. The testimony on this subject that is found in the bill of exceptions consists first, of the statement of Kennedy on cross-examination, that “ the running rigging is in the mate’s charge; the mate attends to receiving the rigging, and the stevedore judges of its fitness, and uses it or not as he sees properand secondly, of the plaintiff’s own statement, that “ Corcoran had charge of the machinery and tackle of unloading and loading; I have seen machinery and tackle changed by his direction.” In the opinion of the court below, it is said that “ this rope had been spliced by the mate who had charge of the ship’s running rigging, while coming up the river.” It is assumed that the fact is so, and is contained in a portion of the testimony that has been overlooked.

It is conceived that the questions in this case were not such as 'could legitimately be passed upon finally by the court. Assuming, in the first instance, that Corcoran had entire control of the selection of the machinery, and that, consequently, the defect was one for which he was chargeable, it is difficult to see why the plaintiff should not have been permitted to ask the jury to find that the defendants had conferred on him such unlimited authority as to make him their representative, and to make themselves responsible for his default. “ Where the employer leaves every thing in the hands of a middle-man, reserving to himself no discretion, then the middle-man’s negligence is the master’s negligence, for which the latter is liable:” Wharton’s Law of Negligence, § 229 ; Grizzle v. Frost, 3 Foster & Finlayson 622. The principle that the master is exempt from responsibility to the servant for injuries received from the ordinary dangers of his employment, including the negligence of his fellow servants, is too deeply imbedded in our law to be disturbed. But where a master places the entire charge of his business, or a distinct branch of it, in the hands of an agent, exercising no discretion and no oversight of his own, it is manifest that the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master should be held answerable. The negligence of the agent, with such powers, becomes the negligence of the master. In this case there was some evidence that the entire duty of providing the appliances for loading and unloading the vessels of the defendants, had been intrusted to the discretion of Corcoran. And just to the extent to which the proof went in fixing upon him the responsibility for the selection of the rigging and for adjusting and working it, did the same proof tend to establish the fact contended for by the plaintiff, that Corcoran was clothed, as to these duties, with the ultimate power and authority of the defendants. Upon the evidence submitted, it was the right of the plaintiff that a jury should pass.

If, in the next place, it should be found that the position of Corcoran, notwithstanding that he had charge of the gang of stevedores, was that merely of a fellow workman of the plaintiff; that the rope had been spliced by the mate on the voyage from Savannah ; and that Corcoran received it without knowledge of the defect that caused the accident, the question would be presented whether the plaintiff would still be affected by the rule exempting the master from liability. The risk of injury which a laborer assumes is that involved in the “ circle ” of his employment. “ He and the fellow servant causing the injury must be co-operating in the same business, so that the former knows that the employment of the latter is one of the incidents of their common service:” Wharton’s Law of Negligence, sect. 230. And the question that would be presented would manifestly be one of fact. A jury would be required to find whether the negligence of the' mate was one of the risks which the plaintiff should be held to have assumed. The result would depend on what should be ascertained to be their relations to each other, the extent to which they were brought into contact, and to which they were engaged in a common employment, and the connexion of the duties 'of each with the duties of the other.

It is not designed in any way to impair or affect the rule settled in the cases on which the court below relied. If it shall appear, in the event, that it was the duty of Corcoran to select the proper materials for the work that was to be done, that he held only the position of a fellow workman of the plaintiff, and that it was an act. of negligence on his part to receive the rope from the mate and use it, the facts, of course, would bar all right of recovery in this action. The cases which were the guide in the decision below, under the circumstances disclosed in them, were justly ruled, undoubtedly; but they do not reach the questions presented here. The error consisted, not in adhering to the authorities, but in withdrawing from the jury the right to ascertain the cause of the accident, the relation in which Corcoran stood to the parties, and, if the accident was caused by the neglect of the mate, the responsibilities to which the plaintiff was subject as an incident of his employment in common with the mate, in the service of the defendants.

The offer to ask the plaintiff whether he heard any expression by Corcoran at the time of the accident, or immediately after it, concerning the rope, or concerning its insufficiency, ought, on the authority of The Hanover Railroad Company v. Coyle, 5 P. F. Smith 396, to have been received as part of the res gestee.

Judgment reversed, and procedendo awarded.