Kelly v. New Haven Steamboat Co.

• Decision Date: 08 January 1902
• Citation: 74 Conn. 343,50 A. 871
• Court: Connecticut Supreme Court
• Parties: KELLY v. NEW HAVEN STEAMBOAT CO.

50 A. 871

74 Conn. 343

KELLY

v. NEW HAVEN STEAMBOAT CO.

Supreme Court of Errors of Connecticut.

Jan. 8, 1902.

Appeal from superior court New Haven county; Ralph Wheeler, Judge.

Action by Patrick Kelly, as administrator of the estate of John B. Kelly, deceased, against the New Haven Steamboat Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The material facts found are these: The defendant corporation, on the day of the Injury, owned and ran the steamboat Continental, on which Kelly, the plaintiff's intestate, was a deck hand. On that day said boat arrived at its dock in New Haven when a strong ebb tide was running. When this was the case, it was the custom, in docking the boat, to turn it about by means of a hawser put out on the starboard side of the boat, passed around the stern, carried forward on the port side, and fastened to a post on the dock. This being done, upon reversing the engines, the hawser holding the stern, the bow would swing around. During this operation, to prevent the hawser from slipping from under the stern, the defendant had provided a beam of wood (hereinafter called a "fender"), which, being put out of a chock hole in the stern under which the hawser passed, effectually prevented such slipping. On the day of the injury, while, the boat was being turned about in the customary manner, but without using said fender, the hawser slipped, and caused the injuries to Kelly described in the complaint. The sole cause of, the slipping was the failure to use the fender. It was the duty of the mate to employ the deck hands, to receive orders from the captain to get ready the lines, and thereafter to see that the appliances were in readiness and in proper condition, that the hawser was put out and taken ashore and fastened to a pile on the wharf, and to give orders and directions to the deck hands in the performance of their duties. The boat was in command of a captain, whose special duty it was to take charge of its navigation, and he did not assume the immediate direction or supervision of the deck hands. It was the duty of the deck hands to assist in docking the boat under the immediate orders of the mate, and it was the duty of the mate to determine, from the condition of the tide and the depth to which the boat was loaded, whether or not the fender should be used, and, if it was to be used, "to give an order to a deck boy to put out the same." It was not the duty of the deck hands to use the fender without express orders from the mate to do so. The use of the fender at the time in question was necessary for the reasonable safety of the deck hands in the place where they were required to work, "and its proper use would have rendered the appliances used and the method of. docking proper and suitable." The fender was a beam of wood about three feet long and four or five inches in diameter. It was kept on the main deck, loosely tied to the flag pole at the stern, and at the time of the accident was in its place ready for use. At the time Kelly was injured he was in the exercise of due care, and at the place where he was ordered to be by the mate; and the court finds that such place was "at that time an unsafe and dangerous place, and the defendant failed to furnish proper and suitable appliances to render the place safe, and the appliances then in operation by the defendant were unsafe and dangerous, by reason of the facts aforesaid." Upon these facts the defendant, among other things, claimed that the injury to Kelly was caused solely by the negligence of a fellow servant, and this claim, with others, the trial court overruled, and rendered judgment as on file.

Edward H. Rogers, for appellant.

James H. Webb and Arnon A. Ailing, for appellee.

TORRANCE, C. J. (after stating the facts). The trial court has found that, legally speaking, the sole cause of the accident to Kelly was the negligent failure to use the fender; and one of the important questions in the case is whether the defendant was responsible to Kelly for that failure. It was so responsible if, in law, the negligence of the mate was the negligence of Kelly's master; while it was not if such negligence was that of Kelly's fellow servant. The common-law rule that a master is not liable to his servant for injuries caused to the latter solely by the negligence of a competent fellow servant is recognized as the settled law of this state. Burke v. Railroad Co., 34 Conn. 474; Wilson v. Linen Co., 50 Conn. 433, 47 Am. Rep. 653; Darrigan v. Railroad Co., 52 Conn. 285, 52 Am. Rep. 500; Zeigler v. Railroad Co., 52 Conn. 543; Griswold v. Railroad Co., 53...