Westerlund v. Rothschild

• Decision Date: 22 June 1909
• Citation: 102 P. 765,53 Wash. 626
• Parties: WESTERLUND v. ROTHSCHILD et al.
• Court: Washington Supreme Court

102 P. 765

53 Wash. 626

WESTERLUND v. ROTHSCHILD et al.

Supreme Court of Washington

June 22, 1909

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by John Westerlund against Henry Rothschild and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Trumbull & Trumbull, for appellants.

Israel Nelson and Robert C. Saunders, for respondent.

MORRIS J.

Appellants are stevedores, and employed respondent, with several others in loading a vessel with piling. The pile was lifted by a cable with attached hooks, and placed in the hold of the ship, where it was respondent's work to place it in proper position, and, when so placed, to detach the hooks. When the hooks were released, and plaintiff had assumed a position of safety, a signal would be given by one called a 'siderunner' to a signalman, who in turn signaled to the engineer in charge of the engine, which was outside of the ship and on a scow, neither it nor the engineer being within sight or hearing of respondent; the cable carrying the piling running from a scow upon which the piles were loaded, up through a port hole, and then down into the hold of the ship. While plaintiff was bending over a pile, in the act of detaching the hooks, the engine suddenly started the cable, jerking the pile up to the deck, and carrying plaintiff along with it, catching him between the pile and the deck, and inflicting the injuries complained of. The negligence alleged was in the movement of the cable while plaintiff was in a position of danger. The defense was negligence of fellow servants. Trial being had, a verdict was returned for plaintiff, and, upon entry of judgment, defendants appeal.

The errors complained of are many, but they principally relate to appellants' contention that the injury was caused through the negligence of fellow servants, in the various ways in which appellants presented the question to the court. It was the duty of appellants to furnish respondent with a reasonably safe place in which to work, and to keep that place reasonably safe during the progress of the work. This duty was not confined alone to the place where respondent performed his work, but was extended to all the instrumentalities, machinery, and appliances which, from the nature of the work, directly affected the safety of the place. Such, then, being the duty of the appellants, failure to properly control the movement of the cable, by giving wrong signals or acting without signals, while respondent was in a position of danger, was negligence, irrespective of the men or means employed for that purpose. Being a duty imposed by law upon the appellants, such duty could not be delegated to others, whether co-employés of respondent or not, so as to relieve appellants from liability for their failure to properly perform this duty. McDonough v. Great Northern Ry. Co., 15 Wash. 244, 46 P. 334. The person selected by appellants to give the signals controlling the proper movement of the cable was, in giving such signal performing the appellants' duty, and his negligence, if any, was the negligence of appellants. Sroufe v. Moran Bros. Co., 28 Wash....