111 Wash. 14 | Wash. | 1920
The plaintiff was injured while acting in the capacity of a stevedore in loading the steamship ‘ ‘ Sono Maru, ’ ’ which vessel was owned by the Transoceanic Company and lay alongside of the Arlington dock, at Seattle. The complaint charged the defendant Arlington Dock Company with negligence in employing an incompetent man to operate the electric winch located on its wharf. The negligence charged against the defendant North Coast Stevedoring Company was that its hatch tender negligently directed the operation of the electric winch. There was a ver
The facts are substantially as follows: The stevedore company made a contract with the steamship company to load the' “Sono Maru” from the wharf of the Arlington Dock Company. The plaintiff was one of its employees and, at the time of his injury, was at work in the hold of the vessel. It employed a hatch tender, who had charge of the loading operations and gave signals to the winchman. It furnished nothing but labor; it had no loading equipment. That equipment was to be furnished by the ship company. Located on the second floor of the wharf was an electric winch owned by the dock company. The ship’s winch would not reach and lift the cargo. The use of the dock winch was needed in the loading operations. The ship company made arrangements with the dock company for the use of this electric winch to assist in loading the vessel. It agreed to pay that company fifty cents per hour for the use of the winch; the dock company was to furnish a man to operate the winch, and the ship company was to pay whatever amount the dock company paid by way of wages to the winch-man. The cargo being loaded consisted of long, heavy
“That the North Coast Stevedoring Company was negligent in this: That the North Coast Stevedoring Company, after its knowledge of the incompetency of Goldspring, failed and neglected to cease work and sus*18 pend operations, and as a result thereof plaintiff was injured.”
The court permitted the amendment over the objection of the stevedore company.
We will first consider the appeal of the stevedore company. It contends that the trial court committed error in permitting the plaintiff to amend his complaint during the progress of the trial. The testimony tended to prove that the dock winchman was incompetent and that the stevedore company had knowledge of such incompetency and the consequent dangers thereof, but permitted the plaintiff to work in the hold of the vessel without informing him of the danger. Much of this testimony was brought out by the cross-examination of plaintiff’s witnesses by the attorney for the stevedore company. This court has, time and again, held that a complaint may be amended to conform to the testimony. Yeisley v. Smith, 82 Wash. 693, 144 Pac. 918; Carlisle Packing Co. v. Deming, 62 Wash. 455, 114 Pac. 172; Sjong v. Occidental Fish Co., 78 Wash. 4, 138 Pac. 313. It does not appear to us that the stevedore company was prejudiced or surprised by the amendment, and we think the court was justified in its ruling. But it is contended that the amendment should not have been allowed because in no event would the stevedore company be liable to the plaintiff for the incompetency of the servant of the dock company. This cannot be the law. Plaintiff was at work in the hold of the vessel and had no means of knowing, and did not know, of G-oldspring’s ineompetency. If the stevedore company knew of it, it was bound either to suspend work or notify plaintiff of the danger. It owed the duty to him of furnishing him a reasonably safe place in which to work. The fact, if it be a fact, that the incompetent workman was the servant of the
In the case of Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 25 N. E. 799, 23 Am. St. 688, 10 L. R. A. 696, the facts were that the ice company undertook to place a structure' on foundations furnished by the landowner, which foundation was in a dangerous condition and that condition was known to the ice company for whom the decedent Keifer was working. Under these circumstances the plaintiff was injured, and the court said:
“ ‘The ice machine company was negligent in directing deceased to work in this place of danger, it having knowledge, and he being without notice or knowledge, of such danger, and the successive concurrent'negligence of appellants thus united in causing the death of, Keifer.’ . . . And the ice machine company with knowledge of its insufficiency, went on and placed the tank thereon, and thereby became responsible for injuries to any of its servants it might send to work upon the tank, without giving them notice of the danger to which they were exposed. Here the negligence of each of three defendants directly concurred in producing the death of Keifer.”
Nor have we any doubt that there was ample proof showing negligence on the part of the stevedore company to take the case to the jury. Its head man on the work knew that the dock winchinan was incompetent, and not only complained thereof to the winchman himself, but also to the foreman of the dock company, and asked that he be removed and a competent man put in his place.
The stevedore company further complains of a number of instructions given by the court to the jury. A detailed discussion of them would serve no good purpose. We have carefully examined all of them and can find no serious fault with them.
The trial court required the plaintiff to consent to a reduction of the amount of this verdict to $3,000. This action of the trial court would be sufficient in itself to cure any irregularity in the verdict.
It is argued that the verdict, even as reduced, is excessive. We have carefully read the testimony and are satisfied that the verdict, as reduced, is not excessive.
The conclusion to which we have come makes it necessary to affirm the judgment as to the stevedore company.
We have hereinbefore stated that the trial court granted the motion of the dock company for judgment notwithstanding the verdict. The plaintiff has appealed from this action of the court and it remains- for us now to consider this view of the ease. It appears from the record that the reason given by the trial court for its judgment in favor of the dock company
In order to determine this controversy, it will be useful to again look at the testimony. Therefrom it appears that in loading a vessel the stevedore company furnishes only labor and does not furnish any appliances whatsoever. In this instance, the stevedore company agreed with the owner of the ship to furnish the labor for the purpose of loading the vessel,-.the ship company was to furnish all necessary machinery and appliances for that purpose. The cargo to be loaded was not within reach of the vessel’s winch and lines and it was necessary to use the winch owned by the dock company. The ship company, therefore, made a contract with the dock company whereby its electric winch was to be used in the loading. The arrangement between the owner of the ship and the dock company was that the latter would receive from the former fifty cents per hour for the use of the winch, and in addition thereto, the ship company was to pay the dock company the amount which it was required to pay to the operator of the winch. Later, the dock company made out to the ship company its bill in accordance with the contract, and that bill was paid by the ship company. During the first half-hour of the loading operations, the stevedore company had one of its men operate the dock winch, but at the end of that time the dock company refused to allow the stevedore com
The respective parties have elaborately argued the question of “loaned servant.” This leads us into a branch of the law where the dividing lines are often exceedingly dim. The general rule of the loaned servant doctrine is certain and easy; the difficulty arises in applying the facts of a given case to the rule. The rule is nowhere better stated than by Mr. Justice Moody in the case of Standard Oil Co. v. Anderson, 212 U. S. 215, where he says:
“To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, a question wMch is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. ’ ’
The loaned servant doctrine is based upon, and grows out of, the negligent act of the servant. In a proper case, the master is, of course, liable for the negligence of Ms servant. But it is sometimes the case that, in a sense, a servant may have two masters. Then arises the question, which master is liable! The first and general master .may hire his servant out to a second and special master to perform only and exclusively
But did the dock company loan its winch and servant to the ship company? Was it a part of the work or duty of the dock company to load this ship? We think not. It was not interested in that work. Neither the ship nor the cargo belonged to it. It was the owner and operator of a wharf, and of that only. It did not
We think these facts make it clearly appear that the dock company loaned its winch and servant to the ship company and that the latter was the master of the servant who operated the winch. This conclusion is not inconsistent, but rather in harmony, with the decision in the case of Standard Oil Co. v. Anderson, supra. There the facts were that the Standard Oil Company owned the wharf and the cargo. It employed one Torrence, 'a inaster stevedore, to load the ship. The plaintiff, Anderson, was a stevedore employed by Torrence to assist in the loading. The winch or hoisting apparatus used in the loading belonged to the oil company and was a part of its wharf. The plaintiff
We are impelled to hold that the dock company’s winch and its operator were hired or loaned to the ship company, and that the winchman was, at the time of the injury of plaintiff, the servant of the latter. But it does not follow that the dock company is not liable to the plaintiff. By hiring its winch and servant to the ship company, it impliedly agreed to furnish a
“A person undertaking to furnish machinery or appliances for the use of the servants of another assumes a duty to furnish proper and safe appliances; and a negligent performance of such a duty, resulting in injuries to one engaged in doing the work or lawfully using the appliances, imposes a liability on the person so furnishing the same for injuries sustained in consequence of such negligence. The obligation does not depend on a contractual relation between the person injured and the person whose negligence causes the injury, but on a failure' to perform a duty assumed by one which results in injury to another. ’ ’
The case of Johnson v. Spear, 76 Mich. 139, 42 N. W. 1092, 15 Am. St. 298, is very similar to the one here. There the defendant owned a coal dock, and vessels laden with coal were in the habit of unloading there. One Watkins had the contract for unloading the vessel in question. He was to get twenty-one cents per ton, and the defendant, the dock owner, was to furnish the dock engine, wheelbarrow, planks, etc. Watkins was to furnish the man to do the work. The plaintiff, who was in the employ of Watkins, was injured because of the breakage of a part of the hoisting apparatus. The court said:
“If the injuries result from the negligence of the defendant while work is being done upon his premises, and through his fault in not keeping them in a suitable and safe condition, he is liable to any servants of the contractor for injuries resulting to them from defects therein; not because .there is any contract obligation between, the parties, but arising out of his obligation or duty to provide safe appliances for the servants of the contractor to use, and to keep his premises upon*28 which such servants are at work in a reasonably safe condition, whether the contract provides for it or not. . . . The contractor, in this case, was employed to do a particular job . . . The defendant furnished the outfit, which included a stationary engine upon his premises, and the appliances connected therewith, in hoisting the coal from the vessels to his dock. The circumstances left the proprietor charged with the duty which regularly attached to him to see that the machinery and appliances so furnished did not endanger the safety of others.”
If the dock company had furnished a winch which was defective and dangerous, then, under all the authorities, it would be held liable to any person who was injured because of such defects. There cannot be any legal distinction between the duty of the dock company in hiring out a defective winch and its-duty in hiring out an incompetent operator thereof. Bach is defective; each is incompetent. D’Almeida v. Boston & Maine R., 209 Mass. 81, 95 N. E. 398, Ann. Cas. 1913C 751, and particularly the note to that case which cites many authorities; Kiser v. Suppe, 133 Mo. App. 19, 112 S. W. 1005; Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, 76 N. E. 1048; Cleveland C. C. & St. L. R. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. R. A. 33, and elaborate note to that case; Niemeyer v. Weyerhaueser, 95 Iowa 497, 64 N. W. 416.
We think the trial court was right in submitting the whole case to the jury, and was in error when it entered judgment for the dock company notwithstanding the verdict. The judgment is affirmed as to the stevedore company and reversed as to the dock company, with instructions to enter judgment on the verdict against both defendants in the sum of $3,000.
Holcomb, C. J., Fullerton, Tolman, and Mount, JJ., concur.