78 Pa. 25 | Pa. | 1875
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
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
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
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.