Haverty v. International Stevedoring Co.
| Decision Date | 28 April 1925 |
| Docket Number | 19044. |
| Citation | 134 Wash. 235,235 P. 360 |
| Parties | HAVERTY v. INTERNATIONAL STEVEDORING CO. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Hall, Judge.
Action by B. Haverty against the International Stevedoring Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Stephen V. Carey and Roy E. Bigham, both of Seattle, for appellant.
Mark M Litchman, of Seattle, for respondent.
Respondent as plaintiff brought this action to recover for personal injuries, and from a verdict in his favor for $3,500 and a judgment thereon, the defendant has appealed.
By his original complaint the respondent alleged that on May 31 1923, he was employed as a stevedore by the appellant and engaged in loading wool in the hold of the steamship Andrea Luckenbach in Seattle harbor, and while so engaged was injured through the negligence of the winchman who carelessly and without warning lowered a load of wool into the hold striking the respondent, who was then engaged in stowing away the previous load, and causing the injuries complained of. In that complaint, after describing the apparatus in use, it was alleged that the winch driver was in sole control of the operations; that it was his duty to lower no load until the previous load had been taken away, to watch the process, and to notify or signal the respondent when a load was to be lowered; and the negligence complained of is that 'said winch driver, without any warning to plaintiff, carelessly and negligently dropped another load of wool * * * on the head and back of this plaintiff.' Thereafter, and before trial, an amended complaint was filed, leave of court having been first obtained, in which it was alleged that the winch was operated by a winch driver under the control and direction of a hatch tender, who was in the employ of the appellant, as vice principal, and that the hatch tender had control, superintendence, and direction of the winch and the operation thereof, which he exercised by giving signals and commands to the winch driver and others, and that it was his function and duty to superintend and control the loading of the sling, the lowering of its load into the hold, and to signal those engaged in the hold in stowing away the cargo; and that it was the duty of the hatch tender to signal to the respondent and those engaged with him in the hold, before any load was lowered, and only after giving such signal to direct the winch driver to lower the load; so that in the amended complaint the negligence alleged was that of the hatch tender and not that of the winch driver, as was charged in the original complaint. The appellant answered the amended complaint with appropriate admissions and denials, and affirmatively pleaded the defenses of contributory negligence, assumption of risk, and fellow servant.
The facts are but little in dispute, the controlling questions being whether the maritime law governs, and if so, whether the evidence justifies a holding, as a matter of law, that the hatch tender was the fellow servant of the respondent.
In order to clearly understand the questions thus raised, the facts as shown by the testimony must be stated with some detail. It appears that the hatch is 24 by 21 feet, surrounded by a hatch coaming something like 16 inches high. The winches are placed just forward of the hatch, and the winch driver stands at these winches to operate the levers. From his position he can see into the hatch, but not all around it, as the angle of vision from his position hardly permits a full view of the bottom of the hatch. The respondent and his fellow laborers were employed at the bottom of the ship, some 40 or 50 feet below the deck upon which the winches stood and where the winch driver and the hatch tender had their stations. It was the duty of the hatch tender to see to the gear, have everything in order, and direct the operations. The loading operations in progress when the accident occurred were carried on in this wise: A sling, attached to a boom, was deposited upon the dock, in which was placed a load of four bales of wool, each bale weighing from 400 to 500 pounds, and the total load weighing from 1,600 to 2,000 pounds. The hatch tender, standing near the rail of the vessel, supervised the fastening of the sling, and when it was loaded and in order, it was his duty to give a signal to the winch driver to raise the sling and carry its load over and above the hatch, ready for lowering. It was then the duty of the hatch tender to step to the hatch, look over the coaming into the hold, observe if the previous load had been disposed of, and then give a warning to the men engaged below by calling out, 'Look out below,' or words to that effect; and thereupon, and not until then, to give the winch driver directions to lower the load into the hold. The men thus warned stood back from the open hatchway until the load came within their reach, when they swung or pushed it into position to be released and deposited. The sling was then carried up by the operation of the winch and the process repeated. With reference to the particular load which caused the injury, the evidence, so far as it goes, is undisputed; but that evidence fails to show whether the load was lowered by the order of the hatch tender or whether it was lowered by the winch driver without any such order. But lowered it was, without any warning to those engaged below, and at the time the respondent was in a stooping position, bending over the previous load in the discharge of his duties, and the descending load struck him upon the back, causing his injuries, the extent and nature of which need not now be described.
Appellant seems to contend that the winch driver was clearly the fellow servant of the respondent, and that, considering the state of the testimony just mentioned and the lack of evidence going to show that the hatch tender directed the load to be lowered, the jury should not be permitted to speculate as to which was at fault.
It is further contended, also, that the hatch tender was the fellow servant of the respondent, and even if there was evidence that the hatch tender was at fault, still no substantial recovery could be had.
Upon the other hand, respondent puts forth the contention that he was entitled to a safe place in which to work; that it is clearly shown that it was the duty of the hatch tender to give him a warning signal before any load was lowered; that the hatch tender was a vice principal performing a nondelegable duty in that respect; and that the failure to cause such a signal to be given was such negligence as entitles him to recover.
The work of a stevedore, in which the respondent was engaged at the time he received the injuries which gave rise to this action, is maritime in its nature. His employment was a maritime contract, the injuries were likewise maritime injuries, and his rights must be determined by maritime laws. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L. R. A. (N. S.) 1157.
Admitting that the maritime law applies, respondent first calls attention to the Act of Congress of 1915, U.S. Compiled Statutes, § 8337a, which reads:
'In any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority.'
And the amendment of 1920 (Fed. Stat. Ann. Supp. 1920, ...
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