Thompson v. Hermann
| Decision Date | 28 November 1879 |
| Citation | 3 N.W. 579,47 Wis. 602 |
| Parties | THOMPSON v. HERMANN and others |
| Court | Wisconsin Supreme Court |
APPEAL from the County Court of Milwaukee County.
The averments of the complaint, as amended, are thus stated by Mr. Justice ORTON:
"The complaint charges, in effect, that the defendants are the owners, and one of them master, and the plaintiff a seaman of the vessel "Surprise," sailing on Lake Erie between the ports of Ashtabula and Erie; that while a heavy sea was running, and the vessel was pitching and rolling heavily, the jaw rope of the main gaff parted, and the gaff was unshipped, launched forward in front of the main mast and swung over into the main rigging, and that the plaintiff with other seamen, was ordered by the master to adjust the gaff, by standing upon the lower boom, and pulling upon the bow-line fastened to one of the horns of the jaw of the gaff, and which was very likely and apt to slip from said horn, which was very smooth, worn and slippery, and cause plaintiff to fall from said boom to the deck below, and be thereby injured, all of which was well known to the master; that the plaintiff, thinking it unsafe and dangerous to obey such order, objected and protested against the same, and informed the master, and insisted, that the main gaff could as well be adjusted by means of tackle then and there near at hand, and with safety to all concerned; but that the master refused to adopt such precautionary means, and imperatively ordered the work to be done in the dangerous way above stated; and that, in the careful discharge of his duty in obedience to such order, the plaintiff fell from said boom, and was injured, by reason of the slipping of the bow-line; and that the master was grossly negligent in not providing, adopting and using the safe and proper means and appliances for such work, and in ordering and directing it to be done in the dangerous manner above stated."
A demurrer to the complaint, as not stating a cause of action, was sustained; and plaintiff appealed from the order.
Order reversed with costs and cause remanded.
For the appellant, there was a brief by Markhams & Smith, and oral argument by E. P. Smith:
1. To the point that a master who by any act or omission unnecessarily enhances the usual risks of the employment, is liable for injuries thereby resulting to the servant, counsel cited Wood's M. & S., §§ 345, 348; 4 Wait's Act. & Def., 417; Coombs v. New Bedf. Cord. Co., 102 Mass., 572; C. & N.W. R'y Co. v. Jackson, 55 Ill., 492; Columbus & Ind. R'y Co. v. Arnold, 31 Ind., 175; Keegan v. Kavanaugh, 62 Mo., 230; Strahlendorf v. Rosenthal, 30 Wis., 674; Smith v. Railway Co., 42 id., 525-6; Wedgwood v. Railway Co., 44 id., 44; Bessex v. Railway Co., 45 id., 477. 2. To the point that plaintiff's act in obeying the order, instead of refusing to do so and renouncing the employment, would not prevent a recovery, they cited Cooley on Torts, 555-6, 559-60; Smith's M. & S., 121; 4 Wait's Act. & Def., 401; Curtis's Rights & Dut. of Mer. Seamen, 33, 93, 134; Desty's Ship. & Adm., § 180; Dixon on Ship., 79; Wood's M. & S., § 387; Abbott on Ship., 173; Collins v. Evans, 5 Q. B., 830; Atkins v. Johnson, 43 Vt., 78; Paterson v. Wallace, 1 Macq., 748; S. C., 28 Eng. Law & Eq., 48; Patterson v. Railroad Co., 76 Pa. St., 389; Indermaur v. Dames, L. R., 1 C. P., 274; C. & N.W. Railway Co. v. Bayfield, 37 Mich., 211; Grizzle v. Frost, 3 F. & F., 622; Coombs v. N. B. Cord. Co., supra; Bartonshill Coal Co. v. McGuire, 3 Macq., 300; Fort v. Railroad Co., 2 Dill., 259; S. C., 17 Wall., 553; Fuller v. Colby, 3 Woodb. & Min., 7; Harden v. Gordon, 2 Mason, 541; Johnston v. Barque Cyane, 1 Sawyer, 153; Ulary v. Washington, Crabbe, 204, Butler v. McLellan, 1 Ware, 220; Schultz v. Railway Co., 44 Wis., 638. Mere knowledge of the danger on plaintiff's part is not conclusive of contributory negligence; but that question, under the circumstances, was for the jury. Kelly v. Fond du Lac, 31 Wis., 179; Kenworthy v. Ironton, 41 id., 647; Wood's M. & S., § 377.
For the respondent, there was a brief by Ludwig & Somers, and oral argument by Mr. Somers:
1. A servant cannot recover unless the employer knew or ought to have known of the defect which caused the injury, and the employee did not know of it or had not equal means of knowledge. Malone v. Hawley, 46 Cal., 409; McGlynn v. Brodie, 31 id., 376; Baltimore, etc., Railroad Co. v. Woodward, 41 Md., 268; 4 Wait's Act. & Def., 417-18; Cooley on Torts, 555; 2 Hilliard on Torts, 467. One who places himself unnecessarily in a position of known danger, cannot recover against the person whose negligence caused the danger. Goldstein v. Railway Co., 46 Wis., 404; 1 Add. on Torts, 489, and cases there cited. 2. Plaintiff attributes the injury to the manner in which the work was to be done. It is well settled that an employer has a right to judge for himself how he will have his work done (not violating the law of the land); and workmen, with knowledge of the circumstances, must judge for themselves whether they will do the work required in that manner. Cooley on Torts, 552; 2 Hilliard on Torts, 468. Even if a safer mode of doing some particular work is discarded by the master's orders, the servant cannot maintain an action for injuries sustained. Dynen v. Leach, 40 Eng. L. & E., 491. A servant may decline any service in which he reasonably apprehends injury to himself (Paterson v. Wallace, 1 Macq., 748; Buzzel v. Manuf'g Co., 48 Me., 113; 1 Add. on Torts, 488); and, being unfettered by any consideration but his own interests, if he incurs hazards which prove injurious, he cannot in law complain. Moss v. Johnson, 22 Ill., 633.
We think the amended complaint in this action states a cause of action, and that the demurrer should have been overruled.
It is objected by the learned counsel of respondent, that the facts stated show that the service necessarily required by the employment was dangerous, and that the plaintiff, by entering upon it, took the risks and hazards upon himself, and that he was not bound to obey orders requiring such service, and might have declined the service, and abandoned the employment, and was negligent in not so doing.
We think that the peculiar character of the employment, and the relations existing between the master and the common seaman of a merchant vessel outside of port, remove this case from these objections and the authorities cited to sustain them; and that, although they might be correct legal propositions in respect to other kinds of employment, they have scarcely any application here. There would seem to be, however, one principle, applicable to all kinds of service, upon which this complaint might be sustained, irrespective of the peculiar character of this employment and the relations of the parties; and that is, that the master is bound to furnish safe machinery, means and appliances for the work required to be done, and that carelessness or negligence in these respects alone may be legal ground for recovery. Smith v. The C., M. & St. P. R'y Co., 42 Wis. 520; Wedgwood v. The C. & N.W. R'y Co., 44 Wis. 44, and many other cases in this court. But, aside from this principle, the master occupies such a position of authority on board of his vessel at sea, and the common seaman such a position of subordination, that the seaman is bound to submit to the will, judgment and discretion of the master, and obey his orders in the management of the vessel or for its repair, and especially in rough weather and in cases of emergency; and any other principle would work insubordination and the destruction of all authority and discipline on board the vessel.
If each seaman, when ordered to perform any work or duty in the management or repair of the vessel, were allowed by law to exercise his own free will, discretion and judgment in all cases of danger, and obey the master or refuse obedience at his pleasure, such a right would directly lead to general mutiny, and be fraught with great danger and peril, not only to the one so insubordinate, but to all on board, and to the ship and cargo as well. The language of the books is, that "disobedience or misconduct of the sailor is of necessity punishable with great severity, because discipline must be preserved, and without it the ship would always be in great peril." 1 Parsons on Maritime Law, 463. ...
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