99 Cal. 363 | Cal. | 1893
This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendants. Verdict and judgment were for plaintiff; and defendants appeal from the judgment and from an order denying their motion for a new trial.
Appellants were stevedores; and at the time respondent was injured they were engaged in loading wheat into a certain ship named “ Chala,” for which purpose they had employed a gang of workmen, and a foreman named Wyatt. On June 7, 1889, respondent was one of the gang, and assisting to load the wheat into said ship. His particular work at the time was that of what is called a “sling-man”—that is, it was his duty to place on the wharf a “sling” or endless ring of rope, and after the warehousemen had placed thereon a certain number of sacks of wheat, to bring the ends of the sling up over the load, to “ reeve” one end of the sling through the other, to put the lift hook through the loop, and to steady the ascending load while within his reach, and then get ready another sling for the next load. When the lift-hook was put into the loop, the load was raised by steam power applied through certain machinery and apparatus until it was above the side of the ship, when it was pulled aboard by another employee. On the day last named while a load of wheat was thus ascending it suddenly dropped upon respondent, and caused the injuries for which he seeks damages in this action.
The general rule is well established that an employee cannot recover judgment against his employer for personal injuries caused by the negligence of a fellow-servant. The authorities to this point are numerous; but it is only necessary to cite here the most recent decisions of this court upon the subject—Daves v. Southern Pacific R. R. Co., 98 Cal. 19, and Congrave v. Southern Pacific R. R. Co., 88 Cal. 360 — and the recent decision of the supreme court of the United States in Baltimore etc.
There is another general rule, however, under which alone, upon the facts so far appearing, respondent can maintain this action—if he can maintain it at all; and that general rule is that an employer must furnish machinery and appliances reasonably suitable and safe for the employee to do his work. In such a case the employer is, of course, not bound to insure the employee against any defect in such appliances; but he is bound to use. reasonable care in their selection or construction. And where that rule applies, the duty to furnish such machinery and appliances is one which the employer owes personally to the employed; and he cannot escape that duty by trusting it to an. employee who negligently performs it. Does that rule apply to the case at bar, and were there any errors prejudicial to appellants committed by the court below bearing upon that question ?
While the general rule is as above stated, still it is well established that the rule does not apply to a case where several persons are employed to do certain work, and by the contract of employment, either express or implied, the employees are to. adjust the appliances by which the work is to be done." For instance, if several men are employed to paint a building or to do some work upon it which requires scaffolding, or some other temporary structure or appliance to support the workmen — the employer to furnish the materials and the employed to construct or adjust the scaffolding or other appliance—the employer is not liable to one of the employees for the careless act of another employee done in ,the construction, adjustment, or maintenance of the structure or appliance. There are many cases establishing and illustrating this principle and applying it to a variety of facts, a few of which are the following: Peschel v. Chicago etc. R’y Co., 62 Wis. 338; Butler v. Townsend, 126 N. Y. 105; Killea v. Faxon, 125 Mass. 485; Ross v. Walker, 139 Pa.
With respect to the giving and refusing of instructions on the point above stated, it would be impossible, within reasonable limits, to notice each instruction in detail; and we will confine ourselves to a general view of them. Some of the instructions asked by appellants and refused or modified by the court—particularly Nos. 3, 7—might well have been given as asked; but we cannot say that appellants were prejudiced by their refusals in view of the fact that the court, at appellants’ request, gave instruction No. 6, which is as follows: “If a master employs servants to perform a particular service, in the course of which it is necessary for them to construct and adjust machines or appliances for their own use in such service, then, in the absence of any special contract to the contrary, the master is only bound to furnish proper materials from which to construct such machines or appliances, and is not bound to see that such machines or appliances are properly constructed or adjusted.” But the charge given by the court of its own motion to the jury, while in the main correct, seems to overlook or ignore the principle contained in said instruction No. 6. It may be plausibly argued that the jury are presumed to have considered the charge of the court as modified by said instruction No. 6; but as the said instruction was an isolated one, given at the request of a party, the jury would have much more surely understood the court, if, in its own charge, it had made express reference to the principle stated in said instruction. We do not see, at present, that the instructions on this point are subject to further criticism. We have said enough, we think, on the subject to guide the court in the event of another trial.
We think, however, that the court did not carry out the principle of said instruction No. 6 in ruling upon the admissibility of evidence; and that errors prejudicial to appellants were committed in excluding certain testimony which they offered.
We do not think that the various isolated and detached pieces of machinery and appliances above described, when temporarily put together for the purpose of loading or unloading a particular ship, can be properly considered as one entire
We think that in sustaining the objections to the above questions and offered evidence the court erred. There possibly may have been some valid special objections to the form of some of the questions, or to some particular language used as calling for the opinion of the witness; but we think that the general objections to them should have been overruled. The purpose of the offered evidence was to show what the real contract was between the employer and the employed, which the other evidence in the case left in doubt. For instance, we cannot imagine what valid objection there could be to the question: “Were they hired for that purpose? ” Moreover, we think that so far as the offered testimony involved proof of the usage, if any such there were, which entered into a general employment to load or unload a ship, in the absence of a special contract, it should have been admitted. A usage, of course, cannot be given in evidence to relieve a party from his express stipulation, or to vary a contract certain in its terms; but it has a legitimate office in aiding to interpret the intentions of parties to a contract, the real character of which is to be ascertained, not from express stipulations, but from general implications and presumptions. Section 1982 of the Civil Code provides that “ an employee must perform his service in conformity to the usage of the place of performance”;
There are only one or two other points necessary to be noticed.
Appellants excepted to a ruling of the court excluding evidence that respondent and appellants belonged to an association called the “Riggers’ and Stevedores’ Union,” which undertakes to regulate and restrict the employment of men by stevedores. The exception is not pressed in the briefs; but as the point may arise on another trial, it is proper to say that we do not think that the court erred in excluding the evidence. It is barely possible that such evidence might be admissible under peculiar circumstances; but it was clearly not admissible when offered in this case.
It is not necessary to consider the denial of appellants’ motion for a continuance, or the matter of newly discovered evidence.
Whether or not respondent was guilty of contributory negligence in standing under the ascending load, was a question for the jury under the conflicting evidence on that point.
We notice no other points necessary to be discussed.
Judgment and order reversed, and cause remanded for a new trial.
De Haven, J., and Fitzgerald, J., concurred.
Hearing in Bank denied.