Gynther v. Brown & McCabe
| Decision Date | 16 September 1913 |
| Citation | 134 P. 1186,67 Or. 310 |
| Parties | GYNTHER v. BROWN & McCABE. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.
Action by William Gynther against Brown & McCabe, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
This is an action to recover damages for personal injuries sustained by plaintiff as a result of negligence alleged to have been occasioned by defendant's servants. Plaintiff declares that at the time of the accident defendant, a corporation was engaged as a stevedore in loading and storing away lumber in the ship "Marechal De Castris," which was berthed at a dock in the Willamette river at Linnton, Or that plaintiff was employed by defendant to receive the lumber in the hold of the ship and to take the same from the ropes to which the lumber was attached and swung by means of pulleys and cables into the hold; that defendant, while loading the ship, had control, through its engineer, and was in possession of a donkey engine upon a scow stationed on the inshore side of the vessel at about the aft end of the forward rigging some 60 feet forward of the hatch through which the lumber was being received; that during the month of May, 1911, plaintiff, with other workmen, was employed by defendant, in the hold of the ship, to store away the lumber placed therein, and while so employed, defendant, through its servants, lowered a timber of large dimensions in the trunkway of the ship; that, while plaintiff and his fellow workmen were undertaking to store the lumber, the engineer of the donkey engine was notified to "let go" on the fall, in order to loosen the chain around the timber, but instead of the engineer "letting go" on the fall he carelessly and negligently went ahead, and as a consequence the timber was suddenly lifted off of the blocks, striking plaintiff violently on his body and pinning him between the timber and a ladder in the main hatch of the ship. The heart of the charge of neglect being that: "The injuries were particularly caused by the negligence of the defendant in not furnishing an engineer fit and competent to carry out the details of his work, and the carelessness and negligence of said engineer, the agent and servant of the defendant, in carelessly and negligently going ahead with the load and hoisting the same instead of letting go on the fall and load when signaled so to do; that the said defendant, its agents and servants, stationed the said donkey engineer at too great a distance and at such a location from the signalman or hatch tender stationed at the hatch, that the signals given by the hatch tender to the donkey engineer could not be and were not communicated with sufficient promptness and accuracy to said engineer, and thereby the said engineer, instead of letting go on the fall as he was signaled to do, went forward through mistake and confusion; and that the system of communication by means of signals was not at all times or at any time prompt, efficient, and accurate." The answer of defendant contains the defenses of assumption of risk, contributory negligence, and the negligence of plaintiff's fellow servant. The case was tried before a jury which returned a verdict in favor of the plaintiff for $12,485. The trial court overruled a motion to set aside the verdict, and defendant prosecutes this appeal.
Lonergan, both of Portland (Griffith, Leiter & Allen, of Portland, on the brief), for appellant.
E.B. Seabrook and R.R. Giltner, both of Portland (Giltner & Sewall, of Portland, on the brief), for respondent.
McNARY J. (after stating the facts as above).
From testimony uncontradicted, it appears: The defendant had stationed on the deck of the vessel, at a point near the hatch through which the timber was being lowered, a hatch tender whose office was to receive signals by word of mouth from the man in the hold and communicate these operating directions to the engineer of the donkey engine, by means of a whistle signal. That at a time approximately synchronous with the mishap and while the timber was resting in the hold of the ship, a fellow servant of plaintiff's in the hold signaled the hatch tender to come back, who in turn blew two whistles, which was the signal to come back. This the engineer did. The plaintiff's fellow servant called, "Let go," whereupon the hatch tender blew three whistles, which was the signal to "let go." Instead of so doing, the engineer hoisted the timber, causing the injury of which complaint is made. It also appears that one Frank Paul was in charge of the crew as foreman, and that the engineer of the donkey engine was required to operate his engine in accordance with the signals given to him by the hatch tender.
Counsel for defendant strongly contend the sole question involved is whether or not the engineer operating the donkey engine was a fellow servant of the plaintiff working in the hold of the vessel. At first blush, the pleadings seem to tender the issue upon that proposition; but, upon further reflection, urge counsel for plaintiff, the allegations in the complaint appear sufficient to predicate negligence upon an imperfect system of signaling employed by defendant. It is expressly disclaimed, in plaintiff's brief, that any substance is to be given to the averments that the injury sustained by plaintiff was occasioned alone by the negligence and unfitness of the engineer of the donkey engine, but to the contrary, was due to defendant's failure to establish a system of communication by means of signaling which was prompt and efficient, as required by the Employers' Liability Law (L.O.L. p. xxxvi, 5057A: "And all machinery other than that operated by hand power shall, whenever necessary for the safety of persons employed in or about the same, or for the safety of the general public, be provided with a system of communication by means of signals, so that at all times there may be prompt and efficient communication between the employés or other persons and the operator of the motive power. ***"
Plaintiff having elected to abandon that part of his complaint which lays the accident exclusively at the door of the engineer of the donkey engine, it becomes our duty to ascertain if the pleadings and proof are sufficient to support the verdict upon theory of a defective signal system.
It must be borne in mind that, after verdict, all parts of a complaint are to be liberally construed together with a view of ascertaining the pleader's intention, and that the primary object is the trial of cases upon their merits, so the rights of parties shall not be sacrificed to technical mistakes, omissions, and inaccuracies. Keeping before us this rule as our guidance, we will now proceed to resolve the complaint into its probative elements. Paragraph 6 contains among other statements,...
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