O'Brien v. Am. Dredging Co.

• Decision Date: 19 February 1891
• Parties: O'BRIEN v. AMERICAN DREDGING CO.
• Court: New Jersey Supreme Court

21 A. 324

53 N.J.L. 291

O'BRIEN

v. AMERICAN DREDGING CO.

Supreme Court of New Jersey.

Feb. 19, 1891.

(Syllabus by the Court.)

On rule to show cause why a new trial should not be granted. Cause tried in the Camden county circuit court, before Justice Garrison and a jury.

Plaintiff's action was brought to recover damages for an injury received by him by reason of his foot having been drawn into the machinery of a steam-dredge, whereon he was employed as a "deck-hand." The dredge was owned by defendant, and was at the time used in dredging the James river, near Richmond, under a contract with the United States government. The machinery had stopped because the chain had jumped from the drum, and plaintiff took a position which exposed him to the injury if the machinery moved. The evidence was conflicting whether plaintiff had been ordered to take that position by one Cannon, who was called "Captain "of the dredge. The machinery was set in motion by Cannon, and caused plaintiff's injury. It was matter of contest upon the evidence whether Cannon or some other workman gave notice to plaintiff of the danger of his position or of the proposed movement of the machinery. There was a verdict for plaintiff, and this rule was granted.

Argued November term, 1890, before the Chief Justice, and Dixon and Magie, JJ.

Mr. Carrow, for plaintiff.

M. P. Grey, for defendant.

MAGIE, J. (after stating the facts as above.) One of the reasons assigned in support of this rule is based on the contention that Cannon, whose act occasioned the injury of plaintiff, was a fellow-servant of plaintiff, and that their common employer, the defendant, is not liable for Cannon's negligence, if his act was negligent, unless it appears that defendant did not exercise proper care in employing him or in retaining him in its employ, of which there was no proof. The general rule that servants employed by or under the control of the same master, in a common employment, obviously exposing them to injury from the negligence of others so employed or controlled, although engaged in different departments of the common business, are fellow-servants, who assume the risk of each other's negligence, and cannot have recourse to the master for any injury resulting therefrom, as announced and established in a series of cases in our courts. Harrison v. Railroad Co., 31 N. J. Law, 293; Paulmier v. Railroad Co., 34 N. J. Law, 151; McAndrews v. Burns, 39 N. J. Law, 117; Ewan v. Lippincott, 47 N. J. Law. 192. Locomotive Works v. Hand, 50 N. J. Law, 464, 14 Atl. Rep. 766, is not brought in question, but its correctness is conceded by plaintiff's counsel. On the other hand, it is also conceded that a master may employ and put in his place a representative, for whose negligence, occasioning injury to a servant also in his employ, he will be liable. The rule thus conceded has been applied by our courts only in the case of Smith v. Iron Co., 42 N. J. Law, 467. The question there was whether an incorporated company was liable to an injured servant whose injury was occasioned by the neglect of its president. The case showed that the superintendence of the business of the company had been committed to its president. He introduced the use of a highly dangerous explosive, without instructing the workmen directed to use it in respect to its dangerous qualities. This court held that under such circumstances a duty devolved on the company to give notice of the qualities of the explosive, a failure to perform which would be negligence, and that, having intrusted to its chief executive officer the superintendence of its business, it became his duty to give the required information, and his failure or neglect in that respect was imputable to the company, and rendered it liable to its servant injured in the use of the explosive. The superintendent of the business was thus held to be, in respect to this duty owed by the company to its servants, a representative of the company, whose negligence was its negligence. The question to be solved in the case before us concerns the relation between the defendant company on the one hand and Cannon and the plaintiff on the other hand, and the rule to be applied in respect to plaintiff's injury, if occasioned by the negligence of Cannon in the relation to the common employer disclosed by the evidence. If that relation comes within the doctrine of Smith v. Iron Co., defendant's liability will be settled; if, however, the relation is different from that then considered, it must be next determined whether it comes within the principles of that case, or whether, upon that or some other principles, the liability of defendant is shown. In determining the relation of the parties we are bound to assume as proved whatever the jury was warranted in finding from the evidence to sustain plaintiff's action. Thus considered, the evidence establishes the following, viz., that defendant is an incorporated company, engaged in the business of dredging by steam-dredges; that Albertson is the general superintendent of the company, having power to direct where the dredges are to operate, to supervise the employment of workmen, and to discharge them; that the steam-dredge, whereon plaintiff's injury was received, was directed to be worked in the James river, near Richmond, under a contract with the United States, the control of government engineers, and the supervision of an inspector stationed thereon; that Cannon, who was called "Captain" of the dredge, was authorized to employ men to work on it, subject to the approval of the general superintendent, who had power to disapprove and discharge them; that the duty of the captain was to operate the dredge in said dredging; that plaintiff was employed by Cannon as a "deckhand" on the dredge, and his duty was to aid in the operation of the dredge; and that Cannon had charge of the men so employed, and they were under him. From this it is obvious that the case in hand does not present the same features as that of Smith v. Iron Co. The relation which its president and superintendent bore to that company is here paralleled by the relation of Albertson to the defendant. While Cannon was intrusted with some authority to employ workmen, yet in respect to the operation of the dredge in the prosecution of defendant's business he was not a general superintendent, but a mere foreman of the gang of workmen, engaged with them in the execution of the master's work. He was a superior, and they were inferior, workmen, but all were employed in a common operation, though in different grades of service. Does the principle on which that case was decided, or do correct principles, fix a liability on the master under the circumstances of this case? The rule laid down in that case is based on the proposition that the chief executive officer of an incorporated company, to whom it has committed the superintendence of its business, is, in respect to...