Pearson v. Arlington Dock Co.

• Decision Date: 08 April 1920
• Docket Number: 15561.
• Citation: 111 Wash. 14,189 P. 559
• Parties: PEARSON v. ARLINGTON DOCK CO. et al.
• Court: Washington Supreme Court

189 P. 559

111 Wash. 14

PEARSON v. ARLINGTON DOCK CO. et al.

No. 15561.

Supreme Court of Washington

April 8, 1920

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Alex Pearson against the Arlington Dock Company and another. From the part of the judgment for plaintiff defendant North Coast Stevedore Company appeals; and from the part of the judgment dismissing the dock company out of the case, plaintiff appeals. Affirmed as to stevedore company and reversed as to dock company, with directions.

Roberts & Skeel and J. J. Geary, all of Seattle, for appellant North Coast Stevedore Co.

Jas. R Gates and Henry W. Pennock, both of Seattle, for appellant Pearson.

J. Speed Smith, Henry Elliott, Jr., and Bogle, Merritt & Bogle, all of Seattle, for respondent.

BRIDGES J.

The plaintiff was injured while acting in the capacity of a stevedore in loading the steamship Sono Maru, which vessel was owned by the Trans-Oceanic Company and lay alongside of the Arlington dock, at Seattle. The complaint charged the defendant Arlington Dock Company with negligence in employing an incompetent man to operate the electric winch located on its wharf. The negligence charged against the defendant North Coast Stevedoring Company was that its hatchtender negligency directed the operation of the electric winch. There was a verdict in favor of the plaintiff and against both defendants. Each defendant moved for judgment nothwithstanding the verdict. The motion of the dock company was sustained; the motion of the stevedoring company was denied, as was also its motion for new trial. The court required the plaintiff to agree to accept $3,000 in lieu of the larger amount found by the verdict; otherwise, a new trial would be granted the stevedoring company. The plaintiff consented to the reduction, and judgment in the sum of $3,000 was entered against the stevedoring company. That company has appealed. The plaintiff has appealed from the portion of the judgment dismissing the dock company out of the case.

The facts are substantially as follows: The stevedore company made a contract with the steamship company to load the Sono Maru from the wharf of the Arlington Dock Company. The plaintiff was one of its employés, and at the time of his injury was at work in the hold of the vessel. It employed a hatchtender, who had charge of the loading operations and gave signals to the winchman. It furnished nothing but labor; it had no loading equipment. That equipment was to be furnished by the ship company. Located on the second floor of the wharf was an electric which owned by the dock company. The ship's winch would not reach and lift the cargo. The use of the dock winch was needed in the loading operations. The ship company made arrangements with the dock company for the use of this electric winch to assist in loading the vessel. It agreed to pay that company 50 cents per hour for the use of the winch, the dock company was to furnish a man to operate the winch, and the ship company was to pay whatever amount the dock company paid by way of wages to the winchman. The cargo being loaded consisted of long, heavy iron pipes. These were on freight cars, which had been brought to the wharf. In loading, the lines of the dock winch would be attached to a bundle of pipes, which would be lifted high up in the air by means of its power. But this winch was unable to swing the load over the boat. For this purpose the lines of the boat winch were also attached to the load. When the load was over and above the hatch it was the duty of the winchman to showly lower it. At the time of plaintiff's injury the dock winchman suddenly and without any signal permitted the load to drop from a considerable height. The result was that the chains which inclosed the bundle of piping came loose, and some of the pipes were thrown through the hatch into the hold, striking the plaintiff and injuring him. Goldspring was the name of the dock winchman.

The testimony tended to show that he was incompetent and that it was his incompetency which caused plaintiff's injury; that long before plaintiff's injury, which was the second or third day of the loading, both defendants knew of such incompetency; that the stevedore company had made complaint to the dock company and requested the discharge of Goldspring, but the dock company took no action till after plaintiff's injury, when it discharged him. Plaintiff had no knowledge of Goldspring's incompetency, nor means of acquiring such knowledge. There was no testimony tending to establish the negligence charged in the complaint against the stevedoring company. However, at the close of plaintiff's case he asked permission to amend his complaint, to conform to the proof, so that it would allege as follows:

'That the North Coast Stevedoring Company was negligent in this: That the North Coast Stevedoring Company, after its knowledge of the incompetency of Goldspring, failed and neglected to cease work and suspend operations, and as a result thereof plaintiff was injured.'

The court permitted the amendment over the objection of the stevedore company.

We will first consider the appeal of the stevedore company. It contends that the trial court committed error in permitting the plaintiff to amend his complaint during the progress of the trial. The testimony tended to prove that the dock winchman was incompetent, and that the stevedore company had knowledge of such incompetency and the consequent dangers thereof, but permitted the plaintiff to work in the hold of the vessel without informing him of the danger. Much of this testimony was brought out by the cross-examination of plaintiff's witnesses by the attorney for the stevedore company. This court has time and again held that a complaint may be amended to conform to the testimony. Yeisley v. Smith, 82 Wash. 693, 144 P. 918; Carlisle Packing Co. v. Deming, 62 Wash. 455, 114 P. 172; Sjong v. Occidental Fish Co., 78 Wash. 4, 138 P. 313. It does not appear to us that the stevedore company was prejudiced or surprised by the amendment, and we think the court was justified in its ruling. But it is contended that the amendment should not have been allowed, because in no event would the stevedore company be liable to the plaintiff for the incompetency of the servant of the dock company. This cannot be the law. Plaintiff was at work in the hold of the vessel and had no means of knowing and did not know of Goldspring's incompetency. If the stevedore company knew of it, it was bound either to suspend work or notify plaintiff of the danger. It owed the duty to him of furnishing him a reasonably safe place in which to work. The fact, if it be a fact, that the incompetent workman was the servant of the dock company, or some one else, could not relieve the stevedore company of this duty.

In the case of Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 25 N.E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688, the facts were that the ice company undertook to place a structure on foundations furnished by the landowner, which foundation was in a dangerous condition, and that condition was known to the ice company, for whom the decedent, Keifer, was working. Under these circumstances the plaintiff was injured, and the court said:

"The Ice Machine Company was negligent in directing deceased to work in this place of danger, it having knowledge, and he being without notice or knowledge, of such danger, and the successive concurrent negligence of appellants thus united in causing the death of Keifer.' * * * And the Ice Machine Company, with knowledge of its insufficiency, went on and placed the tank thereon, and thereby became responsible for injuries to any of its servants it might send to work upon the tank, without giving them notice of the danger to which they were exposed. Here the negligence of each of three defendants directly concurred in producing the death of Keifer.'

Nor have we any doubt that there was ample proof showing negligence on the part of the stevedore company, to take the case to the jury. Its head man on the work knew that the dock winchman was incompetent, and not only complained thereof to the winchman himself, but also to the foreman of the dock company, and asked that he be removed and a competent man put in his place.

The stevedore company further complains of a number of instructions given by the court to the jury. A detailed discussion of them would serve no good purpose. We have carefully examined all of them, and can find no serious fault with them.

It is further contended that the verdict is irregular and void. It was as follows:

'We, the jury in the above-entitled cause, do find for the plaintiff and against both defendants in the sum of $3,750 each Arlington Dock Co. North Coast Stevedoring Co. dollars ($7,500.00).'

While the verdict is somewhat awkward, it is perfectly plain that the jury meant to find a verdict of $7,500 for the plaintiff against both defendants; each defendant to pay one-half of that amount. The jury did not have any right to segregate this amount, and make each defendant liable for a portion thereof; consequently that portion of the verdict where the jury undertakes to do so must be considered surplusage. San Marcos Electric Light & Power Co. v. Compton, 48 Tex.Civ.App. 586, 107 S.W. 1151; San Antonio R. R. Co. v. Bowles, 88 Tex. 634, 32 S.W. 880; Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N.W. 916.

The trial court required the plaintiff to consent to a reduction of the amount of this verdict to $3,000. This action of the trial court would be sufficient in itself to cure any irregularity in the verdict.

It is argued that the verdict, even as reduced, is excessive. We have carefully read the testimony, and are...