Long v. McCabe & Hamilton, Inc.

• Decision Date: 03 April 1909
• Citation: 52 Wash. 422,100 P. 1016
• Court: Washington Supreme Court
• Parties: LONG v. McCABE & HAMILTON, Inc.

100 P. 1016

52 Wash. 422

LONG v. McCABE & HAMILTON, Inc.

Supreme Court of Washington

April 3, 1909

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by George C. Long against McCabe & Hamilton, Incorporated. Judgment for plaintiff, and defendant appeals. Reversed, with directions to enter judgment for defendant.

R. S. Eskridge and Hughes, McMicken, Dovell &amp Ramsey, for appellant.

Blaine, Tucker & Hyland and Robert C. Saunders for respondent.

CHADWICK J.

Plaintiff brought this action against defendant to recover damages sustained by reason of a fall from the deck of the steamship Nebraskan, which was at the time of the accident engaged in loading railroad drawabars at a dock in the city of Seattle. Defendant is an incorporated company engaged in stevedoring and employs through its foreman crews or gangs of men to load and unload ships. At the time plaintiff was injured one Tommy Moore was engaged by defendant as yardarm winchman, one Harris as midship winchman, and plaintiff as hatch tender. The method of loading was as follows: A bullion sling, made of heavy rope closely woven, and weighing about 125 pounds, was laid on the dock. In this was placed about a ton weight of the irons. The load was then hoisted by the yardarm winchman, and brought clear of the ship and over the hatch, when he reversed his winch, letting out his fall line the load being taken by the midship winchman and lowered into the hold. When dumped, the empty sling was raised by the midship winchman, carried clear of the hatch coamings, where the load of the sling was shifted to the yardarm winch, and was carried by the yardarm winchman across the deck; the midship winchman, in turn, reversing his winch so as to let out the slack of his fall line. The load was lifted and carried from the deck clear of the ship and over the hatch upon a signal from the hatch tender, and lowered by the midship winchman upon a like signal. In taking out the empty sling the midship winchman acted upon signal, but whether it was to be taken on out by the yardarm winchman as soon as it was clear of the hatch coamings or to be held awaiting a signal before it was carried across the deck was the principal ground of dispute in the court below. It was the duty of the hatch tender to see that all was clear in the hold of the ship as well as upon the dock. This made it necessary for him to follow the load, and watch it until it was dumped in the hold of the ship, and, in turn, after seeing that all was clear below, walk from the hatch to the side of the vessel to see that the loaders were ready for the empty sling, and that no one was in the way when he signaled the yardarm winchman to drop it. After three loads had been carried in, plaintiff ordered the sling brought out of the hold, and then turned and walked toward the side of the ship. He says he had taken two or three steps. Tommie Moore, upon whose alleged negligence plaintiff's right of recovery is predicated, says he was standing at the side of the vessel with one foot on the foot rail looking down on the dock, when he was struck by the sling, carried over the side of the ship, and received the injuries of which he now complains. Defendant moved for judgment at the close of plaintiff's case, for judgment at the close of the testimony, for judgment notwithstanding the verdict, and for a new trial, all of which motions were denied. From a judgment in favor of plaintiff defendant has appealed, and has assigned the several rulings of the court, as well as the entry of judgment, as error for review by this court.

It will be seen that respondent seeks to hold appellant liable for a breach of its duty to employ a competent fellow servant. This court has laid down the rule that it is the duty of the master to make a reasonable effort to ascertain the qualifications of a servant employed to work with others. Pearson v. Alaska Pacific S. S. Co. (Wash.) 99 P. 753; Seewald v. Harding Lumber Co., 49 Wash. 655, 96 P. 221; Green v. Western American Co., 30 Wash. 87, 70 P. 310; Melse v. Alaska Commercial Co., 42 Wash. 356, 84 P. 1127; Smith v. Michigan Lumber Co., 43 Wash. 402, 86 P. 652. Negligence of the master in the performance of this duty will not be presumed from the mere occurrence of an accident, the result of a negligent act. It is a fact to be proved by plaintiff. He must show by a preponderance of the evidence two things: That the servant was incompetent, and that the master knew, or should have know, of his incompetency in the light of all the evidence. 26 Cyc. 1296-1299. Courts should not undertake to determine the weight of evidence; but, if in the discharge of their duty it appears that there is no evidence within the rules aforementioned, they should meet the responsibility put upon them, and so declare the fact. In the instant case the testimony relied upon to prove the incompetency of Tommie Moore, the yardarm winchman, was of a negative character. It consisted, when reduced to the fewest words, of the testimony of several witnesses that they had never seen him drive a winch, and of one who said that he had never seen him drive a winch before. One of the witnesses went further, and testified that he was reputed among longshoremen to be a wheat packer. Another witness said that Tommie Moore had told him that he had never run a winch, and another that he had asked him how to run the winch just before the work of loading had started on the occasion of the accident. All of these things may have been true, and yet appellant would not be liable. The testimony relied upon to prove knowledge on the part of the appellant consists of the statements of Madison Fredenberg, who was at the time of the accident hatch foreman and had under his immediate charge all of the men engaged in the work of loading the ship, from the loaders on the dock to the packers in the hold. Fredenberg worked under the direction of one Billy Moore, who was the walking boss and the immediate representative of appellant. His testimony on this point follows: 'Int. 9. Did you ever know a man by the name of Tommie Moore? A. Yes, sir. Int. 10. If you answer the foregoing interrogatory in the affirmative, state when you knew him, whether you knew him on or about December 21, 1906, and how long you had known him before that time. A. Knew him December 21, 1906, and for about six months prior to that time. Int. 11. State if you know what his business or occupation was. A. He was a wheat packer. Int. 12. Do you know whether or not Tommie Moore was present on the steamship Nebraskan on the 21st of December, 1906, at the time that the plaintiff, George C. Long, was injured? A. Yes, sir; he was. Int. 13. State what Tommie Moore was doing at that time. A. He was driving a winch. Int. 14. How long before that time had Tommie Moore been driving a winch, to the best of your knowledge? A. About two weeks, to the best of my knowledge. Int. 15. Who set Tommie Moore to driving the winch on that day? A. Myself. Int. 16. State if you know what kind of a winch driver Tommie Moore was. A. He was not a competent man; but, being a wheat packer, I had to place him there through instructions from Billy Moore. Int. 17. Did you have any conversation with Billy Moore on the 21st of December, 1906, relative to have Tommie Moore run the winch? A. I did. I spoke to Billy Moore, and told him I did not consider Tommie Moore competent to run the big winch. He said leave him there till some one came to run the engine, and then put him in the hole.

Int 18. If you answer the foregoing interrogatory in the affirmative, state fully what the conversation was between you and Billy Moore at that time and when it took place, whether before or after the plaintiff Long was hurt. A. As I said before, I told Billy Moore Tommie was not competent to run the winch. That was before George C. Long was hurt. Int. 19. State whether or not you were working on the steamship Nebraskan on the 21st of December, 1906. A. I was. Int. 20. If you answer that you were, state in what capacity you were working. A. In the capacity of hatch foreman. Int. 21. If you state in answer to any of the foregoing interrogatories that Tommie Moore was not a good, skilled, or experienced winch driver, state why you formed that opinion and what opportunity you had to observe his skill as a winch driver, and how many times during your acquaintance you had known him to run a winch. A. I had known Tommie Moore to drive a winch twice. The first time that he drove a winch he drove it for me. He was afraid then he could not run the winch, and I showed him how. That is the reason that I formed the opinion that he would never make a winch driver. He...