Mullan v. Philadelphia & Southern Mail Steamship Co.

1. It is the duty of every employer to exercise reasonable care in providing his laborers with safe machinery, suitable tools and appliances, adapted to the uses for which they are designed. 2. Where a master places the entire charge of his business, or a distinct branch, of it, in the hands of an agent, exercising no discretion and no oversight, the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities, is a breach of duty for which the master is liable. 3. The risk which a laborer assumes of injury from the neglect of his fellow, is when they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service. 4. The plaintiff was engaged as a laborer, under a stevedore employed by the ship-owner, in unloading a vessel; the rope by which the load was raised was one that had been spliced by the mate before the arrival of the vessel at port, and was used as a “ single fall,” which was more liable to part than a “ double fall.” Whilst raising a cask, the rope parted at the splice, the cask fell and injured the plaintiff. Whether the stevedore was a fellow-workman of the plaintiff, and whether the negligence of the mate in splicing the rope was a risk assumed by the plaintiff, were, under the circumstances, for the j^y- 5. It was proper for plaintiff to ask of a witness if, at or immediately after the accident, he heard the stevedore say anything concerning the rope or its insufficiency. 6. Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, followed.

Error to the District Court of Philadelphia: Of January Term 1873, No. 173. This was an aotion on the ease, brought April 28th 1871, by Samuel -Mullan against the Philadelphia and Southern Mail Steamship Company. The plaintiff was one of a gang of men employed by a stevedore engaged by the defendants, to unload one of their vessels lying at a wharf in Philadelphia, on the river Delaware. Whilst raising two tierces of rice by a rope, the rope which had been spliced, parted at the splice. One of the tierces fell into the hold of the vessel where the plaintiff was at work, rolled upon his arm, and so injured it that it had to be amputated. The plaintiff, alleging that it was through the negligence of the defendants’ servants that he was injured, brought this action. The case was tried November 2d 1872, before Mitchell, J. The plaintiff having given- evidence of the facts above stated, called J. McLaughlin, who testified that one Corcoran was the chief stevedore ; he employed and discharged the men, but they were paid by the agent of the company; the men received their orders from Corcoran alone; he had the exclusive control and direction of them ; there was no interference with him by any one. On the day of the accident, the vessel was being unloaded “ by a single fall — a single fall is where a pulley is attached to a gang-rope, and a ropé passes over the pulley to one end of which is the load to be raised, and the other end is attached to the donkey-engine.” The rope was of the best kind; it had been spliced with a long splice, by which the rope where it is spliced is no thicker than it was originally. The rope had been used all day. The accident occurred about seven o’clock in the evening. The load was being taken from the bottom of the hold; it was rolled to the forward hatch, where it was hooked to the fall, raised to the deck and rolled out to the wharf. A weight on a single fall is apt to untwist the rope; the rope that parted was not sufficient, as a single fall, to unload two tierces of rice; it should have been used as a double fall, but there was not enough of this rope to weave a double fall. After the accident, a double fall was made from another rope. Two tierces at a time were taken by Corcoran’s orders. It was his business to judge how much should be put on the fall. Henry Gerber, who was in charge of the engine and hoisting-apparatus, testified: * * * “ A single fall will unload a vessel twice as rapidly as a double cargo fall, but it takes nearly twice as much engine power. In a single fall it takes as much pow'er of the engine to haul the load as the load weighs, and a little more to overcome the friction. A short splice in a rope is double the size of the rope unspliced. * * * It is the twist, or, as we call it, the lag of the rope that keeps the woven strands of either splice in their place. A long splice is as good as a short splice so far as the breaking strength of the rope is concerned; where a long splice runs over a pulley the pieces where the ends -are tucked in will chafe against the pulley’s side — that is its only objection. * * * When a spliced rope is so used that a heavy weight is on one end, the rope will untwist, and the more it does that the more likely is the splice to come apart. When a single cargo fall is used, the weight at one end has a tendency to make the rope untwist; that is, if the weight is allowed to swing round, as it will naturally do. But where a double fall is used, both ends of the .rope are made fast, and there can be no untwisting of the lag of the rope.” * * * Hugh Kennedy testified as to the accident and its circumstances, and as to Corcoran’s control, &c., and, on cross-examination, said further: “ After the accident, we rove another fall, a' double fall, within ten or fifteen minutes. I have followed the sea in merchant vessels. The running rigging is in the mate’s charge. At this port, I believe vessels are discharged by stevedores who have charge of the tackle for this. The mate attends to receiving the rigging, and the stevedore judges of its fitness and uses it or not as he sees proper.” The plaintiff testified: “ I was employed as a stevedore by Corcoran, and was then working under him. Nobody had power but Corcoran to give directions to me. He was my boss. He had the power to dismiss me. . He had entire control of the men, and we recognised no one else. When the rope parted, I was in the hold of the vessel rolling tierces into the hatch and chocking them up. We were working pretty sharp, and I was in the act of rolling up a barrel into the hatch, and of putting a cho.ck under it, in order to have it in place when the clamps should come down, when the two tierces being hauled up fell, and one of them struck the barrel I was rolling up, and from that bounced and rolled on to my hand and arm. * * * Corcoran did no work himself. He superintended the men under him, and gave them their orders. No one else gave orders. * * * Corcoran had charge of .the machinery and tackle of unloading and loading. I have seen machinery and tackle changed by his direction. While a vessel was discharging, he had constantly the charge of it. I never knew any one else to have charge.” The plaintiff was asked: “Did you hear any expression from Corcoran at the time of the accident, or immediately after it, concerning this rope or concerning its insufficiency ?” This was objected to by defendants. The objection was sustained and a bill of exceptions sealed. The plaintiff having closed, the defendants moved for a nonsuit, on the ground that Mullan and Corcoran were fellow-workmen; and, admitting the accident to have been caused by the latter’s neglect, the defendants could not be made legally responsible. The court ordered a judgment of nonsuit. The plaintiff moved the court in banc for a rule to take off the nonsuit, which was refused, Mitchell, J., delivering the opinion of the court, viz :— “In this case the facts were that the plaintiff on the 26th October 1870, while employed by the defendants as a stevedore, and working in the hold of the steamship Wyoming, owned by the defendants, was injured by the fall of two tierces of rice, which were being hoisted from the hold to between decks, whence they were to have been discharged over the ship’s side. The immediate cause of the accident was the parting of the rope used for hoisting. This rope had been spliced by the mate, who had charge of the ship’s'running rigging, while coming up the river. The splice drew out without breaking, and the casks fell upon the plaintiff. At the time of the accident the chief stevedore employed by the defendants had charge of the unloading of the vessel. The question is, whether the defendants are responsible for the injury received by the plaintiff. '* * * “ It was insisted that the defendants were responsible upon two grounds: first, because they were bound to furnish proper and safe tools and appliances for the use of persons engaged in their service; and secondly, because the employment of the plaintiff being in a subordinate capacity to that of the head stevedore, the plaintiff was not within the operation of the principle that the servant assumes the risk of the negligence of his fellow servant. In other words, that the plaintiff was not a fellow servant of the head stevedore, but subject to his control and amenable to his orders. “ If a master negligently provides unsafe machinery, tools or implements for his servant to work with, he is answerable for the consequences. “ But this rule, like every other, has its just limits and qualifications, without which the rule itself would be an intolerable burden. If the master provides proper and safe machinery and tools, and employs a competent and prudent person to take charge of them, whose duty it is from time to time to inspect them, put them in order and renew their defective parts, he cannot he justly answerable for an accident to a fellow servant, arising from the negligence of such person. Without this reasonable exception to the rule of responsibility, it would be too severe for the business relations of life and most oppressive in its operation. It would in many cases abrogate entirely the general rule that the master is not responsible to his servant for the negligence of his fellow servant. It would make the employer an insurer against accidents, which no foresight or prudence of his could possibly foresee or prevent: Ryan v. Cumberland Valley Railroad Co., 11 Harris 354. * * * The particular negligence alleged in that case, was in omitting to hook safely the cars of a railroad train, a species of negligence which it is difficult to distinguish in principle from that which caused the accident in the present case. “ The employer is bound to furnish proper and safe machinery, but where he is obliged from the nature of the business to employ agents to run it, and to take care of it, and tb keep it in proper repair, he is not responsible, unless he commits the charge to an incompetent or untrustworthy person. Upon the contrary principle, every employer must be held to warrant every bolt or pin, or screw, or piece of mechanism used, although he himself knows nothing of the machine, or does not understand its structure, or is incapable of appreciating the conditions of danger. He must be held to warrant not only that everything is good and sufficient when he supplies it, but that it shall continue so. And this not to a stranger, but to a person who is daily conversant with the risks of the business, and who, upon entering upon it, must of necessity know that his safety depends as much upon the capacity and watchfulness of his fellow workmen as upon his own. * * * “ If the unfortunate accident which was the cause of the present action was caused by negligence, it is plain that the negligence was either the remote negligence of the mate in making an imperfect splice, or the proximate negligence of the head stevedore in not examining the rope with sufficient care before he commenced the unloading of the vessel. But how could the owners know anything of that, unless they were informed of it ? Is a ship-owner bound to examine personally every day, every rope in his ship, at the peril if he does not, of heavy damages to the persons in his employ resulting from the negligence of other persons in his employ, who are necessarily intrusted with such things'!1 We must go to this extent if we are to hold the defendants responsible in the present case. “ Nor was there anything in the position of the plaintiff which relieves him from the operation of the general rule. He was a fellow servant in the same general employment. * * * That Corcoran, the head stevedore, was above the plaintiff, who worked subject to his orders and under his directions, makes no difference. The rule is not altered by the fact that the servant to whom the negligence is imputed was a servant of superior authority, whose directions the plaintiff was bound to obey. * * * There are cases in which persons have been so completely substituted in all respects to the place of the master, exercising in his stead a general and complete authority and control over the whole business, that they are regarded to all intents and'purposes as principals and not fellow servants — masters substituted in the room of other masters. But the present case cannot be likened to them in any respect.” The plaintiff took a writ of error; he assigned for error:— 1. Rejecting his offer of evidence. 2, 3. Ordering judgment of nonsuit, and refusing to take it off.