Benson v. Goodwin

• Decision Date: 20 June 1888
• Citation: 147 Mass. 237,17 N.E. 517
• Parties: BENSON v. GOODWIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 237

17 N.E. 517

BENSON

v.GOODWIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1888.

Exceptions from superior court, Suffolk county; MASON, Judge.

Action of tort by James Benson against Eben P. Goodwin and others, part owners of the merchant ship Benj. F. Packard, to recover damages for personal injuries to the plaintiff. At the trial in the superior court, the plaintiff testified that he shipped on board the Benj. F. Packard as a sailor to take her to New York from Bath; that he went as a sailor or runner; that at the time of the accident the vessel was being towed down the river from Bath, Me., with one tug-boat ahead, and one on the starboard side; that the men on board were engaged in getting up the port anchor; that, as the anchor was being hauled up, it caught in a moulding on the side of the ship, and the mate said that they were in a hurry to fish the starboard anchor, and that they would hang this anchor in the shank painter; that he then said to plaintiff, “You go down, and pass the shank painter;” that he (plaintiff) went down in obedience to the mate's command, and was injured by the flukes of the anchor falling on his foot; plaintiff also testified that at the time of the accident the captain was on the poop deck, with the pilot, on the after-part of the ship, and that the captain had charge of the vessel; that he (plaintiff) knew it was a patent anchor, and that the flukes played on a pivot, and that he knew that, if the flukes came down on him, it would hurt him; that, when he passed the shank painter around, he sat on the shank, and threw both legs down on the shank, and then got up, and stood with his left foot where the fluke caught him, and his right within the space made by the shank and the curved fluke of the anchor after the fluke fell. There was other evidence tending to show that the plaintiff acted under orders from the mate, but there was no evidence that he had signed shipping articles. The defendants requested the court to rule that a common sailor and mate are fellow-servants, and that plaintiff could not recover; but the court refused so to rule, and ruled that a common sailor and mate were not fellow-servants, and that the defendants would be liable for the negligence of the mate if the plaintiff was injured in consequence thereof. The jury returned a verdict for the plaintiff for $7,000, and the defendants excepted.

C.B. Southard, and Russell Bradford, for defendants.

The contention of the defendants is based upon the principle that a master is not liable to one of his agents or servants for injuries sustained through the negligence of another servant or agent, when both are engaged in the same general business. This principle is fully established. Farwell v. Railroad Corp., 4 Metc. 49;Clifford v. Railroad Co., 141 Mass. 564, 6 N.E.Rep. 751; Wright v. Railroad Co., 25 N.Y. 562, and cases cited. The defendants, having employed suitable servants, and having provided proper apparatus, are not responsible to one servant for the negligence of another in the management and use of such apparatus. Holden v. Railroad Co., 129 Mass. 268, 274;Carle v. Railroad Co., 43 Me. 269. It is equally well settled in this commonwealth that all servants employed by the same master in a common service are fellow-servants, whatever may be their grade or rank. Rogers v. Manufacturing Co., 144 Mass. 198, 203, 11 N.E.Rep. 77, citing Albro v. Canal Co., 6 Cush. 75;O'Connor v. Roberts, 120 Mass. 227;Walker v. Railroad, 128 Mass. 8;Holden v. Railroad Co., 129 Mass. 268;McDermott v. Boston, 133 Mass. 349;Flynn v. Salem, 134 Mass. 351;Mackin v. Railroad, 135 Mass. 201. See, also, Buzzell v. Manufacturing Co., 48 Me. 113;Blake v. Railroad Co., 70 Me. 60. Plaintiff and the mate were in the same service, derived their compensation from the same source, and were under the same direction and control of the captain, who was in command of the vessel. Albro v. Canal Co., 6 Cush. 75, 77;Gilman v. Railroad Corp., 10 Allen, 233, 236. 2 Thomp.Neg. 1026. The mate is a sailor, and is one of the crew, and is under the orders of the master. Curt.Merch.Seam. 86, 99; Dana, Seam. Fr. 137, 199; Holt v. Cummings, 102 Pa.St. 212; The Ocean Spray, 4 Sawy. 105; The Minna, 11 Fed.Rep. 759; Scarff v. Metcalf, 13 N.E.Rep. 796; Atkyns v. Burrows, 1 Pet.Adm. 244. “Seamen” includes all on board excepting the captain and apprentices. Rev.St.U.S. § 4612; tit. “Merchant Seamen.” The master and mate of a vessel are fellow-servants. Mathews v. Case, 61 Wis. 491,21 N.W.Rep. 513. The master and keeper of a vessel is a fellow-servant of the mate. Caniff v. Navigation Co., 33 N.W.Rep. 744. Boatswain and stevedore are fellow-servants. The Furnessia, 30 Fed.Rep. 878. Master, mate, and sailor are fellow-servants. Malone v. Transportation Co., 5 Biss. 315. Mate and sailor are fellow-servants. Halverson v. Nisen, 3 Sawy. 562. Captain and sailor are fellow-servants. Loughlin v. State, 11 N.E.Rep. 371. Chief engineer and third engineer on steamer are fellow-servants. Searle v. Lindsay, 11 C.B.(N.S.) 429, (1861.) “The master of a vessel may be the alter ego of the owners; but the mate, when the master is on board, is not an alter ego, and the mate and seamen are fellow-servants.” Olsen v. Clyde, 32 Hun, 425. A seaman and the officers of a ship are fellow-servants. The City of Alexandria, 17 Fed.Rep. 390. That the plaintiff owed obedience to the mate is immaterial. This court has repeatedly held that persons employed in the same work, although one has the control and direction of the other, are fellow-servants. Duffy v. Upton, 113 Mass. 544. Conductor and brakeman are fellow-servants. Hayes v. Railroad Corp., 3 Cush. 270. Superintendent of sewers and laborer are fellow-servants. Johnson v. Boston, 118 Mass. 114. Superintendent and laborer are fellow-servants. Floyd v. Sugden, 134 Mass. 563. If a party is ordered by one to whom he owes obedience into a dangerous service, other than that for which he was employed, his obedience will not, as a matter of law, be negligence. Beach, Contrib.Neg. § 132. But the duty of obedience, assuming it to exist, is not material in any other respect. The danger of the employment may be greater as the duty of obedience is greater; but “if the employment is attended with extraordinary dangers, fully known to the workmen who enters upon the employment, he assumes those risks also.” Joyce v. Worcester, 140 Mass. 245, 250, 4 N.E.Rep. 565. The owners of a vessel are not liable for injuries to a sailor, although occasioned by the negligence of the master himself. NELSON, J., Hanson v. The A. Heaton, U.S.Dist.Ct. Dec. 4, 1886. The plaintiff was an able seaman, and undertook to run all the ordinary risks of the service, which included the risk of negligence on the part of others in the service of the same employers. Albro v. Canal Co., 6 Cush. 75;King v. Railroad Corp., 9 Cush. 112; Hutchinson v. Railway Co., 5 Exch. 343.“The navigationof a ship from one port to another constitutes one common undertaking, for which all the ship's company in their several stations are alike employed. Each one takes the risk of any negligence of his associates in the common employment.” The City of Alexandria, 17 Fed.Rep. 390, (Dist.Ct.S.D.N.Y. July 3, 1883.) The owners placed competent officers in charge of the vessel, and furnished suitable apparatus. They could do no more to protect the plaintiff. To hold them liable for the negligence of the mate would put a responsibility on the owners of vessels beyond all limits. Searle v. Lindsay, 11 C.B.(N.S.) 429, 440. The obligations of vessel owners have been defined in nearly the same language in ancient and modern authorities. Sailors, if injured without fault of their own, are only entitled to be cured at the charge of the ship. Laws of Wisbuy, § 18; Curt.Merch.Seam. 109, 110. They are not to receive any compensation or allowance for the effects of the injury. Reed v. Canfield, 1 Sum. 195, 202. See The E.B. Ward, Jr., 20 Fed.Rep. 702. The determination of this case is not affected by the fact that the accident occurred in Maine. Davis v. Railroad Co., 143 Mass. 301, 303, 9 N.E.Rep. 815. The plaintiff relies upon three cases: The Chandos, 6 Sawy. 544, 4 Fed.Rep. 645; Daub v. Railway Co., 18 Fed.Rep. 625; Thompson v. Hermann, 47 Wis. 602,3 N.W.Rep. 579. In the first case the question now before this court was not considered, and the judge expressly stated that it was not necessary so to do. In the second case there is no discussion of authorities; nothing is reported except the charge to the jury. In the third case the facts were not the same, as the injury was occasioned by the master of a vessel, who was also part owner. Notwithstanding the general allegation that the plaintiff was free from negligence, the facts set forth show that he was guilty of contributory negligence, and that he had such a complete knowledge of the risk and danger he was subject to in going on the anchor that he assumed the risk with full knowledge of the danger.

L.W. Howes and G.C. Abbott, for plaintiff.

The tendency now is, both by the courts of the highest order and by legislation, to narrow and limit, and not broaden, the old rule as to master and servant, making a marked distinction between those whose only duty is to manage, direct, and command, and those under them, whose only duty is to obey their commands and do the work. In the one case, such manager or superintendent, having entire control and management of the enterprise, clothed with full power, the owners acting only through him, becomes their agent and representative, and his acts are their acts, and they are responsible for them. Railway Co. v. Ross, 112 U.S. 390, 394, 5 Sup.Ct.Rep. 184, and cases cited; Booth v. Railroad Co., 73 N.Y. 38; Darrigan v. Railroad Co., 24 Amer.Law Reg.(N.S.) 453; Railway Co. v. Henderson, 37 Ohio St. 552; 1 Redf.R.R. 554; Railroad Co. v. Keary, 3 Ohio St. 201;Railroad Co. v. Stevens,...