Mullan v. Philadelphia & Southern Mail Steamship Co.

• Decision Date: 15 February 1875
• Citation: 78 Pa. 25
• Parties: Mullan <I>versus</I> Philadelphia and Southern Mail Steamship Company.
• Court: Pennsylvania Supreme Court

78 Pa. 25

Mullan versus Philadelphia and Southern Mail Steamship Company.

Supreme Court of Pennsylvania.

January 12, 1875.

February 15, 1875.

January 12th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the District Court of Philadelphia: Of January Term 1873, No. 173.

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H. Hanson and D. Dougherty, for plaintiff in error.—The principle that the doctrine respondent superior does not apply when the injury arises from the negligence of a fellow workman is subject to the exception where a fellow workman is by the common master put in his place: Ashworth v. Stanwix, 3 El. & El. 701; Clarke v. Holmes, 7 Hurlst. & N. 937; Grizzle v. Frost, 3 Foster & Finl. 622; Hall v. Johnson, 3 Hurlst. & C. 589. A master who employs a servant in dangerous work is bound to take all reasonable precautions for his safety: Patterson v. Wallace, 1 Macqueen (H. L.) 748; Barton's Hill Coal Co. v. Reid, 3 Id. 266; Weger v. Penna. Railroad, 5 P. F. Smith 460; O'Donnell v. Allegheny Valley Railroad, 9 Id. 239; Ardesco Oil Co. v. Gilson, 13 Id. 146. A corporation can act only through an officer, and his negligence is theirs: Frazier v. Pennsylvania Railroad Co., 2 Wright 104.

M. P. Henry, for defendants in error.—The master is not liable to one in his employ for an injury by his negligence to his fellow servant unless he so withdraws from the conduct of the business as to put the fellow servant in his place; and if he furnishes safe machinery, &c., and competent superintendents, the master has done his duty: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146; Caldwell v. Brown, 3 Id. 453; Ryan v. Cumberland Valley Railroad, 11 Harris 384; Weger v. Penna. Railroad, 5 P. F. Smith 460. A foreman is not in the position of a deputy master: Searle v. Lindsay, 11 C. B. N. S. 429; Gallagher v. Piper, 16 Id. 671; Albro v. Agawam Can. Co., 6 Cush. 75; Wright v. N. Y. Central Railroad, 11 Sm. App. 562. The company do not warrant that good material shall be properly used, or that the servants shall keep it in its original safe condition: Hard v. V. & C. Railroad, 32 Vt. 473; Leaver v. Railroad, 14 Gray 466.

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 "where a long splice runs over a pulley, the pieces where the end are tucked in will chafe against the 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 proper;" and secondly, of the plaintiff's own statement, that "Corcoran had charge of the machinery...