Strauhal v. Asiatic Steamship Co., 85 P. 230

Strauhal v. Asiatic Steamship Co.

85 P. 230 | Or. | 1906

Mr. Chief Justice Bean

delivered the opinion.

1. It was not error to allow the amendment to the complaint. It did not substantially change the cause of action. The action is not based on contract, but on tort, alleged to have been caused by the defendants jointly, and in such case a right of action exists against any or all of the wrongdoers, independent of contract: Wabash, etc., Ry. Co. v. Shacklet, 105 Ill. 364 (44 Am. Rep. 791).

2. The allegation of employment was merely to show that deceased was rightfully on the barge at the time of the accident and that the lumber company, his employer, owed him the duty of providing a reasonably safe place in which to work, or of warning him of the danger incident to the employment, and the steamship company, the duty of not increasing the hazard of his employment by its negligence.

3. There is no evidence in the record connecting the defendant the Oregon Railroad & Navigation Co. in any manner whatever with the accident which resulted in the death of plaintiff’s intestate, and therefore its motion for nonsuit was properly allowed. It is true Capt. Conway, who hired the barge, was the superintendent of water lines of both the Oregon Railroad & Navigation Co. and the steamship- company, and it is possible, although not clearly shown from the testimony, that the coal was taken from the bunkers of the former company, but this was not sufficient to make it liable for the condition of the barge or the manner in which it was loaded or discharged. The barge belonged to the defendant lumber company, was in the joint possession of it and the defendant steamship company, and was loaded by the latter either in its own way or as directed *106by the barge master, a point upon which there is some conflict in the testimony, and there is evidence tending to show that it was not seaworthy and was improperly loaded. The witness Seaman, who had known the barge for six or eight months prior to the accident, was master of her for a time about the 1st of December, and who inspected her at the request of the officers of the lumber company, testified that she was an old craft; that her keel was broken in one place, and appeared to be rotten in others; that the two main braces had been pulled from the sides for about three inches and in his opinion the barge was not seaworthy for more than 300 tons, and he furthermore testified that he saw her the day of the accident after she had been loaded and that the load was not evenly distributéd and so put an unusual strain on the barge. Dewyl, another witness, who had known the barge for 10 years or more and was foreman of her for some time, testified that he saw her as she was being towed from the dock to the Arabia and that she was loaded too heavily amidships; that such a load had a tendency, to loosen the hog-chains, open the seams and cause her to take water. When the barge was made fast to the Arabia, the water was coming in faster than it could be removed by the pumps and there was a considerable list to port. The steamship company, however, commenced discharging the coal from the starboard bow, which necessarily increased the list. When O’Reilly reached the barge he complained of the manner in which it was being discharged, and the foreman gave directions to have tile coal removed as evenly as could be done and it was shifted so as to put the barge on an even keel, but by that time there was such a quantity of water in her that it was too late to keep her from capsizing.

4. There was evidence, therefore, tending to show that the accident by which the deceased lost his life was caused by the concurrent negligence of the steamship in loading and discharging the barge and of the lumber company in furnishing an unseaworthy barge, and in not keeping her free from water and in sending the deceased to work at a place known to it, but unknown to him, to be dangerous, without warning him of the danger. And this brings the case within the established rule *107that where an injury is the result of the concurring negligence of two or more persons, although acting separately, either or all are liable: Smith v. Rines, 2 Sumn. 338 (Fed. Cas. No. 13,100) ; Pirie v. Tvedt, 115 U. S. 43 (5 Sup. Ct. 1034, 1161, 29 L. Ed. 331); Wabash, etc., Ry. Co. v. Shacklet, 105 Ill. 364 (44 Am. Rep. 791); Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481 (25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688); Hawkesworth v. Thompson, 98 Mass. 77 (93 Am. Dec. 137) ; Cuddy v. Horn, 46 Mich. 596 (10 N. W. 32, 41 Am. Rep. 178); Slater v. Mersereau, 64 N. Y. 138; Brown v. Coxe (C. C.), 75 Fed. 689; Flaherty v. Minneapolis & St. L. Ry. Co. 39 Minn. 328 (10 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654); Village of Carterville v. Cook, 16 Am. St. Rep. 250, notes; Gulf, Colo. & Santa Fe. Ry. Co. v. Bell, 8 Am. Neg. Rep. 159, 164, notes.

In Smith v. Rines, 2 Sumn. 338 (Fed. Cas. No. 13,100), Mr. Justice Story says with reference to actions of this character: “Nothing is more clear, than the right of the plaintiff to bring an action of this sort against all the wrongdoers, or against any one or more of them, at his election. There is no principle, upon which the defendant has a right, in any court of justice, to say, that the action shall be several, and not joint; and thus to take away the right of election, which the plaintiff has by law, to make it joint.” And in Pirie v. Tvedt, 115 U. S. 43 (5 Sup. Ct. 1034, 29 L. Ed. 331), Mr. Chief Justice Waite says: “A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way.” Judge Seaman says in Brown v. Coxe, 75 Fed. 689, that the creation of a joint liability in tort does not depend upon proof that the same act of wrongdoing was participated in by both tort-feasors and that they were in concert and had a common intent or were engaged in a joint undertaking: “But the rule under which parties become jointly liable as tort-feasors extends beyond acts or omissions which are designedly co-operative, and beyond any relation between the wrongdoers. If their acts of negligence, however separate and distinct in themselves, are concurrent in producing the injury, their liability is joint as well as several. Each becomes *108liable because of his neglect of duty, and they are jointly liable for the single injury inflicted because the acts or omissions of both have contributed to it.” Smith v. Day, 39 Or. 531 (64 Pac. 812, 65 Pac. 1055), is not in conflict with this doctrine. In that case the defendants were acting independently of each other, without concert or common purpose, and the injury was not due to their concurring negligence, although it may have been a common result to which the act of each contributed. To make tort-feasors liable jointly there must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury. “Where the negligence of two or more persons directly concurs to produce an injury to another,” holds the Supreme Court of Illinois in Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481 (10 L. R. A. 696, 23 Am. St. Rep. 688, 25 N. E. 799), “although one may have undertaken one part of the particular work and another another part, and the negligence occurs in the performance of each of the several parts of the work which directly contributes to produce the injury, all will be liable.” We are of the opinion, therefore, that the action can be maintained against the lumber company and the steamship company jointly. In such action a plaintiff may recover, if at all, against both or either of the defendants as the proof may warrant: Thomphins v. Clay St. Ry. Co., 66 Cal. 163 (4 Pac. 1165); Winslow v. Newlan, 45 Ill. 145; Carpenter v. Lee, 5 Yerg. (Tenn.) 265.

5. It is contended that the deceased assumed the increased risk due to the condition of the barge at the time he went to work thereon, but there is no proof that he was conscious of the danger, or had knowledge of the fact.

The judgment is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.