Hermann v. Port Blakely Mill Co.

• Decision Date: 22 January 1896
• Docket Number: 11,176.
• Citation: 71 F. 853
• Court: U.S. District Court — Northern District of California
• Parties: HERMANN v. PORT BLAKELY MILL CO.

71 F. 853

HERMANN v. PORT BLAKELY MILL CO.

No. 11,176.

United States District Court, N.D. California.

January 22, 1896

Van Ness & Redman, for defendant.

MORROW District Judge.

The libelant sues for $10,000, as damages for injuries alleged to have been caused by the negligence of the defendant corporation, through one of its employes, on board the American ship Kate Davenport, while he was engaged in loading the vessel with lumber at Port Blakely, state of Washington.

The facts of the case are, briefly, these: Libelant was the first mate of the vessel, and, at the time he sustained his injury was in the between decks on the port side, supervising and assisting in the loading of lumber. He had a gang of four men working under him, receiving the lumber. The vessel was lying head on to the wharf, and had chutes extending from the wharf into both portholes,-- one on the starboard and the other on the port side. The mate was stationed in the between decks on the port side, and was receiving lumber through the porthole on that side of the vessel.

The wharf, being considerably higher than the portholes, afforded an efficient and easy method of loading. On the wharf there was another set of men, under the charge of a foreman, who were engaged in sending the lumber into the hold and between decks by means of the chutes. These men would place a piece of lumber on one of the chutes, and slide it down into the vessel, where it was received by the mate and his men, and piled up with the other lumber. It appears that some of the lumber depending on the size and weight of the piece, which would come down with considerable force and momentum, which made it necessary for those in the between decks to get out of the way. To avoid any disaster from this danger, it was the custom and the duty of some person on the wharf to give a signal or warning cry to those in the vessel when a piece of lumber was started down one of the chutes, or just after it had been started. This warning was given not merely as a matter of convenience, but as a danger signal, to apprise those in the vessel, so that they might be on the lookout for the lumber, and get out of its way as it came rushing down. It was therefore a signal which was necessary to the safety of those in the vessel, and was relied upon by them to avoid any risk of injury. At the time the accident occurred through which libelant was injured, he was engaged, with the other men, in the act of lifting a piece of lumber, described by the witnesses as 40 feet long, and 10 by 10 in breadth and thickness. While doing this, to remove it on a roller from the end of the chute, another piece of larger dimensions, 60 feet long, and 12 by 12, unexpectedly, and without the usual signal having been given, or any warning to apprise those in the between decks of its having been started on the chute came down, and, before libelant could get out of the way struck him on his right leg, severely injuring that limb. Another man, who was close by at the time, also had a very narrow escape from being struck by this piece of lumber. The testimony is uncontradicted that the signal was not given on this particular occasion. It appears that a like omission had occurred a couple of days previously, and that the mate had called the attention of the foreman in charge of the men on the wharf to this delinquency, and requested him to caution his men to be more careful. It also appears that there was no particular danger connected with the loading provided the warning signal was given in ample time to permit the men in the hold to watch for the approaching lumber, and get out of its way as it came down.

From this recital of facts, it may be taken as established that on this particular occasion, when libelant was injured, no warning signal was given by the person on the wharf whose duty it was to give such signal, and that this was such negligence as contributed proximately to the accident and injury sustained by libelant. The question then occurs, is the employer, the Port Blakely Mill Company, liable to the libelant for this negligence of his coemploye? It is contended by counsel for defendant that the company cannot be held responsible, because libelant was a fellow servant with the employe whose duty it was to give the warning signal and that he was not injured through any fault or omission of duty which the company, as employer, owed to its employees. The libelant's counsel argues that this contention is not sound, for the reason that, among the positive duties and obligations which the employer owes to his employes, is that of providing a safe place for the employes in which to work; that, applying this rule to the case at bar, it was necessary for the maintenance of that safety to give warning as each piece of lumber was sent down into the hold of the vessel; and that the giving of this warning was one of the duties which the law imposes upon the master personally, for failure to perform which, whether it be his personal negligence or of his servant, acting in his stead, damages may be awarded.

It is undoubtedly true that the master assumes the duty towards his servant of providing him with a reasonably safe place in which to work; that this duty is a positive and personal one; and that, if delegated to a subordinate, it remains, nevertheless, in law, the act of the master. McKinney, Fel. Serv. p. 73, Sec. 28; Wood, Mast. & S. p. 695, Sec. 334; Shear & R. Neg. (3d Ed.) p. 119, Sec. 92; 7 Am.& Eng.Enc.Law, p. 830, and cases there cited; Anderson v. Bennett (Or.) 19 P. 765.

The rule is ably and clearly stated by Mr. Justice Brewer in Railroad Co. v. Baugh, 149 U.S. 368, 386, 13 Sup.Ct. 914, as follows:

'A master employing a servant impliedly engaged with him that the place in which he is to work, and the tools or machinery with which he is to work or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and, when he employs one to enter into his service, he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guaranty of safety but it does require that reasonable precautions be taken to secure safety, and it matters not to the employe by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employe, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore, it will be seen that the question turns rather on the character of the act than on the relations of the employes to each other.

See, also Hough v. Railway Co., 100 U.S. 213; Railroad Co. v. Herbert, 116 U.S. 642, 6 Sup.Ct. 590, and cases there cited.

The rule itself is well settled. The question here is whether the negligence of the person on the wharf whose duty it was to give the warning signal, and who failed to do so, was a breach of the master's duty to furnish libelant a reasonably safe place to work in, or whether it was the negligence of a fellow servant, not engaged in the performance of a positive duty required of the master. It is important to observe in this connection that libelant was not injured by reason of any defect or inherent danger in the premises or place where he was engaged in working, which the master knew or should have known, and which libelant did not know; but he was injured solely by reason of the fact that the person whose duty it was to give the warning signal omitted to do so. No question was raised at the hearing as to the safety of the hold and between decks, so far as the place itself was concerned, nor as to the sufficiency and fitness of the implements and instrumentalities used in loading, nor as to the competency of the person whose duty it was to give the signal to discharge that service. No negligence on the part of the company in employing and selecting the particular individual to give the warning was shown, and, so far as that feature of the case is concerned, it may be taken as conceded that he was competent. The legal presumption is that he was competent, and that the master discharged his duty to the libelant in that respect, no proof to the contrary having been submitted. Beasley v. Fruit-Packing Co., 92 Cal. 388, 28 P. 485; Drake v. Railroad Co. (Sup.) 30 N.y.Supp. 671; Potter v. Railroad Co. (N.Y. App.) 32 N.E. 603.

Having selected a competent person, the master has done all that the law requires of him, and any negligence of such coemploye is the act of a fellow servant, for which the master is, by the general law, exempt from liability. This view of the case is confirmed by inquiring into the danger which existed and its cause. The only fact that rendered the place unsafe was the failure to give the signal. But for that omission, it would have been, on the particular occasion when libelant was hurt free from danger. The method of loading lumber pursued in this case, and the practice of giving signals of warning, so that those in the vessel could get out of the way as the piece of timber comes down the chute, is, as was testified, the usual and customary way...