Garstka v. Republic Steel Corp.

• Decision Date: 06 September 1940
• Docket Number: No. 68.,68.
• Citation: 293 N.W. 691,294 Mich. 387
• Parties: GARSTKA v. REPUBLIC STEEL CORPORATION.
• Court: Michigan Supreme Court

294 Mich. 387

293 N.W. 691

GARSTKA

v.REPUBLIC STEEL CORPORATION.

No. 68.

Supreme Court of Michigan.

Sept. 6, 1940.

Personal injury action by Walter Garstka against the Republic Steel Corporation, a New Jersey Corporation. From the judgment, the defendant appeals.

Affirmed.

WIEST and CHANDLER, JJ., dissenting.

Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Argued before the Entire Bench, except BUTZEL, J.

Howell, Roberts & Duncan, of Cleveland, Comp.Laws 1929, § 14021. for appellant.

Baillie & Cary, of Detroit, for appellee.

McALLISTER, Justice.

About daybreak on the morning of October 28, 1936, Walter Garstka was working on the wharfs of the Republic Steel Corporation along the west bank of Cuyahoga river at Cleveland, Ohio. Garstka was a sailor, having able-bodied seaman papers, with the rating of wheelsman and watchman. He was a member of the crew of the Liberty, a ship owned by the Nicholson Transit Company. The Liberty was moored to the wharf while being loaded with steel by the employees of the Republic Steel Corporation. Along the west bank of the river, and parallel to it, were four lines of railroad track. On the track nearest the river, a crane owned by defendant was being operated, lifting bundles of steel by means of a boom, cables, and hook from a gondola car standing on the track west of the crane; and depositing them in the hold of the ship. The crane and its machinery and housing were part of a railroad flat car. When the boom of the crane was swung towards the river in loading the boat, the housing revolved, swinging to the west and projecting over the adjacent track on which the gondola car was standing, slightly to the south of the crane. The crane car could be moved up and down the track by its own mechanism. In order to move gondola cars into position for unloading near the ship and to move them down the track after they are unloaded, the defendant company uses an electrical ‘pusher.’ When the ‘pusher’ is not available, a gondola car can be moved by attaching the cable of the crane to the end of the car, and causing it to be pulled. It is a violation of the rules of the defendant company to move a gondola car by swinging the housing of the crane car over the track on which the gondola car is standing, and then causing the gondola car to be bumped or pushed by the housing of the crane car.

On the morning in question, in the gondola car, which was being unloaded, there were employees of defendant company whose duty was to attach, by chains, bundles of steel to the hook at the end of the cable of the crane. On the ship, about 40 feet from the crane, and directing the loading for the defendant company, was Andy Azre, the signalman and spotter, an employee of defendant. With him was the mate of the ship, Frank LaFay. In the hold were employees of defendant company, who unfastened the bundles when they were loaded into the ship. In order to keep the ship on even keel, the mate, after several cars had been unloaded, wanted to know how many more bundles of steel remained in the gondola car. He called to Garstka and, in the presence of Azre, told him to go over to the car and count the bundles that remained. Azre said that this was unnecessary, as he knew how much steel remained to be loaded; but upon LaFay's insistence, Garstka left the ship and went over to the car. It was about a quarter to six in the morning. When Garstka was climbing onto the gondola car, or while he was at the northeast corner of it, Azre gave the signal to Murdock, the crane operator, that caused the crane to swing out and the housing to revolve over the adjoining track, crushing Garstka between the housing and the end of the gondola car. As a result, Garstka suffered severe injuries, and brought suit against the Republic Steel Corporation for damages resulting from negligence. On a trial before a jury in Wayne circuit court, he was awarded a verdict in the amount of $18,000. Motions by defendant for judgment notwithstanding verdict and for a new trial were denied by the trial court, and defendant appeals.

In the assignments of error it is claimed that the trial court erred in submitting the question of defendant's negligence to the jury; that the undisputed evidence shows that plaintiff was guilty of contributory negligence; that there was improper joinder of the parties defendant during the course of the proceedings; that the cause of action was barred by an agreement of settlement; and that the verdict was excessive.

Much importance is seemingly attached by defendant to the question of whether plaintiff was a licensee or invitee at the time that the accident took place. But in our opinion this is to over-emphasize questions regarding the condition of the premises and the matter relating to whether warnings of known perils were given by defendant's employees. If plaintiff is entitled to recover, it must be upon the theory that he was injured because of the negligence of defendant's employee, Azre, and not because of the maintenance of unsafe premises. The crane moved and was operated only upon signals from Azre. The crane operator could not see anything about him. Azre was the ‘eyes' of the operator of the crane. If Azre knew, or should have known, that plaintiff might be injured as a result of his signals in causing the crane to be moved or operated, he was negligent if he did not use ordinary care to avoid injuring Garstka; and defendant would be liable for such negligence.

It is contended by defendant that the accident occurred before daybreak and that Azre did not see Garstka as he was climbing onto the gondola car. If he had seen Garstka at one end of the gondola car and had given signals causing the crane to be operated in such a manner as would result in injury to plaintiff, there is certainly no question that Azre would clearly have been guilty of negligence. If he did not see Garstka, but had reason to believe that he might be at the end of the gondola car, where he could be injured by the operation of the crane, and thereafter, without regard for Garstka's safety, had given the signals for such operations resulting in the injuries which plaintiff received, Azre would likewise have been guilty of negligence.

It is contended that Azre did not know Garstka had left the ship and had gone over to the gondola car. But Azre was present when Garstka received his instructions from the mate of the ship. He knew that the mate had insisted, in spite of Azre's statement that it was unnecessary, that Garstka go over and report as to the amount of steel still remaining in the gondola car. He knew that Garstka went somewhere after receiving these instructions, as Garstka did not remain with Azre and the mate, but disappeared somewhere in the dark. In this regard Azre's testimony as to his knowledge of Garstka's whereabouts just prior to the accident is pertinent. He testified:

‘Q. On that night, what was the first time when you saw Walter Garstka, even though you don't know him by name but you ascertained afterwards? What was the first time that you saw him? A. Well, I saw him before he got hurt, and I told him-the mate asked him, ‘How many lifts you got in the car?’ And I told him, ‘I know how many lifts; you don't have to go up there.’ And the mate says, ‘Go ahead.’ And he went up, and I heard him scream, and I went up and took him off the car. * * *

‘Q. Well, after this conversation between the mate and Garstka, what did Mr. Garstka do? A. He went on the boat and on the car, and he went up to count the lifts, so while we was putting them down in the boat, the lifts, I heard somebody scream, and naturally I stopped the bundle right where it was, and when I seen who it was, I thought it was one of our men, and went up there, and I seen him on the car, and he says, ‘Take me off the car.’ I grabbed hold of him and pulled him down and took him into the washroom and waited for the doctor.'

Defendant strenuously contends that Azre, by the foregoing answer, ‘only meant to narrate what he later learned to be the fact.’ While the answer might be susceptible to such an interpretation, it was clearly for the jury to determine what the witness meant by the language he used; and it would seem that a most natural conclusion, to be drawn by the jury, was that Azre knew that defendant had gone over to the car.

Furthermore, it is claimed that Garstka was guilty of contributory negligence in climbing up at the north end of the gondola car which was nearest the crane; and that, knowing of the danger in the operation of the crane, he was guilty of contributory negligence in not using due care for his own safety. Garstka admitted that he had seen a sign: ‘Danger. Crane moves without warning’; but that he did not know ‘that the crane on the next track wouldn't clear this car on the second track. I never seen that before.’

In addition, there was testimony from which the jury could conclude that the crane, instead of merely revolving and crushing plaintiff between the housing and the gondola car in the course of loading, was used for the deliberate purpose of bumping the gondola car on the adjoining track to a different position, by a pushing operation. Azre testified:

‘Q. Now, how did the crane man move the car? A. I was motioning him to go.

‘Q. Now, you say that the pusher wasn't there? A. No; he went down to spot some other car.

‘Q. He went down to spot some other cars? A. Yes.

‘Q. Then will you describe how this thing was handled when the crane mechanism-the crane car moved the other car? How did they do that? A. It has got a boom on that-that was sticking straight out, facing the east. The boom and the steel on it-he had to move south to put the load in position where he wanted it; so I moved in and he happened to be up there at the same time I moved him.

‘Q. I am not clear when you say, ‘I moved him.’ Will you just clear that up a little bit? You mean that you gave him a signal that he was to move the crane...