Young v. Hahn

• Decision Date: 21 May 1902
• Citation: 69 S.W. 203
• Parties: YOUNG v. HAHN.
• Court: Texas Court of Appeals

69 S.W. 203

YOUNG v. HAHN.

Court of Civil Appeals of Texas.

May 21, 1902.

Appeal from district court, Galveston county; Wm. H. Stewart, Judge.

Action by John Young against Conrad Hahn. From a judgment for plaintiff, defendant appeals. Affirmed. Motion for rehearing overruled.

Jas. B. & Chas. J. Stubbs, for appellant. John Grothgar and D. D. McDonald, for appellee.

GILL, J.

Conrad Hahn brought this suit against John Young to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of the negligence of Young, his master. A trial by jury resulted in a verdict and judgment for plaintiff for $500, from which defendant prosecutes this appeal. Young was a stevedore, and had secured the contract to load the steamship Springwell, lying at the Galveston wharf. Plaintiff was a longshoreman, and employed by defendant to store cargo in the hold of the ship. While at work with others storing borax in the hold of the ship, a sack of borax fell on him from a sling containing a number of sacks, which was being hoisted by steam power from the wharf to the ship for the purpose of being lowered into the hold. Three grounds of negligence were averred: First, that Bridewell, defendant's foreman and vice principal, had carelessly caused the hoisting derrick to be rigged too high to allow the tackle and sling attached to it to lead fairly and directly into the hatch No. 2, for which it was designed; second, that Foreman McBride, acting as gangwayman, carelessly handled and directed the sling load so as to cause it to fall; third, he failed to warn plaintiff of the approaching danger.

Defendant answered by general denial, and interposed as special defenses: (1) That the derrick was one of the appliances furnished by the steamer for loading it; that it was rigged in the usual way; that plaintiff knew how it was rigged, and knew also that sacks frequently fell while being loaded, and their fall was one of the ordinary risks of the employment; (2) that the tackle was properly rigged; (3) that plaintiff was guilty of contributory negligence in failing to keep a lookout for his own safety; and (4) that his injury was due to the negligence of a fellow servant.

In the ship's deck were two openings or hatches through which goods were to be lowered, the large hatch leading into the hold of the ship, and the smaller, or hatch No. 2, leading into what was known as "between-decks," a compartment separate and distinct from the hold, and separated from it by solid walls or partitions. Both these hatches or openings were on the same side of the mast to which the derricks were fastened, the larger one being nearest the mast, and the smaller being somewhat farther away. Two wooden arms were attached to the mast, one being shorter than the other. The shorter one had sufficient length to reach to the middle of the first hatch, and the longer one to the center of the second hatch. These arms could be raised or lowered by pulleys. To each was attached ropes and pulleys for the purpose of lifting the cargo from the wharf to the ship's deck, and lowering it through the hatches to its destined place in the interior of the ship. Each of these hoisting pulleys was operated by a separate steam winch located on the upper deck of the ship. Each winch was in charge of a man who took his orders from the gangwayman in charge of the loading of the hatch to which that winch belonged. The long arm to which the hoisting gear for the small hatch was fastened was not lowered to a horizontal position, and therefore did not reach to the center of the small hatch. For this reason the sling load would be six inches from the center of the hatch No. 2, and that much nearer the large hatch than it should have been. The cargo was lifted and lowered in this manner. By means of the steam winch a sling made of rope would be lowered over the side of the ship to the wharf, where it would be filled with the sacks of borax, and the sling tightened over them. Then, at a signal from the gangwayman in charge of that hatch, the man in charge of the winch would turn on the steam, and the load would thus be drawn up an inclined plane, resting against the side of the ship until it reached the edge of the deck. The load would then, under the guidance of the gangwayman, be swung to a position over the hatch, and thence lowered into the ship, where the sling would be released, and its contents stored in proper place by men placed there for the purpose. If the load, when it was stopped at the edge of the ship, was at a point opposite the center of the hatch, the load would swing like a pendulum directly to and over the center of the hatch. If the load did not reach the edge of the ship at that point, it was the duty of the gangwayman to adjust it, and if this was not done it would miss the center of the hatch, a distance proportioned to the distance it was out of line at the starting point. Plaintiff, in discharge of his duties, was in the hold of the ship, about 20 feet beneath the opening of the larger hatchway. Cargo was being lowered into it according to the method described, and he was engaged in storing the loads thus placed therein. Separate winches, separate hoisting apparatus, separate gangways, separate gangwaymen, and separate gangs of men were used for each hatch. While plaintiff was so engaged the winch for the small hatch was put in operation, and they began to load therein sacks of borax. These sacks were about 18 inches long, a foot wide, and 8 inches thick, and weighed ____ pounds. This was done without the knowledge of plaintiff, though he knew the other winch was there, and that the hold between-decks was to be loaded. At about the first or second load designed for the smaller hatch the load swung obliquely in the direction of the larger hatch, struck the side of the hatch (which is raised above the level of the deck), causing one of the sacks to fall out of the sling into the larger hatch, and struck plaintiff, whereby he was injured as alleged.

McBride was the foreman in charge of the work, his principal being absent. He had relieved the gangwayman Kirwin, and took his place, the latter having gone to get other men. Just as the sack fell out of the sling McBride cried out a warning, but plaintiff did not hear it. It was the duty of the gangwayman to cry out a warning for the benefit of the men below whenever a sling load approached the hatch. Plaintiff did not hear the warning, though others in the same hold did. It was possible for plaintiff to see the rope working under the arm which passed over the large hatch, and in that way tell that the other winch had started. He might also have known it from the noise, but, as there was much noise from various sources about the ship, he would not necessarily have acquired the knowledge by the noise of the winch.

By the first assignment of error appellant assails the charge of the court wherein it is assumed that McBride, the foreman, was a vice principal, and not a fellow servant. It is not contended by appellant that McBride was not a vice principal in adjusting the derricks and hoisting appliances, for the proof conclusively shows that their adjustment was intrusted to him. Even if he was a fellow servant in other respects, the duty to have them safely and properly adjusted could not be delegated; so if the accident was due to a failure of duty in this respect, and plaintiff was without fault, the master would be liable.

But one of the grounds upon which liability is predicated is the negligence of McBride while acting in the place of the gangwayman Kirwin, and the complaint embodied in the first assignment is addressed to the charge in so far as it bears upon this phase of the case. In this connection it is also contended that there is no proof that McBride was clothed with authority to employ and discharge men, and no proof sufficient to present the issue of vice principal, much less...