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In view of the conclusion thus arrived at, | 4. TRIAL (§ 343*) - GENERAL VERDICT it is not necessary to notice the first point FECT. suggested above and urged by the respond ent in support of the motion, viz., that the notice of appeal was not served upon him. The motion to dismiss the appeal herein is granted.

vor of plaintiff on all the averments of the A general verdict imports a finding in facomplaint material to his recovery.

We concur: NETT, J.

(25 Cal. A. 12)

CHIPMAN, P. J.; BUR

KOSKELA V. ALBION LUMBER CO. et al. (Civ. 1229.)

(District Court of Appeal, Third District, California. June 23, 1914. Rehearing De

nied by Supreme Court Aug. 22, 1914.)

1. SHIPPING (§ 84*)-DEATH OF SERVANTCOURSE OF EMPLOYMENT.

Decedent, a sawmill employé, was loaned to perform the work of a longshoreman for the charterers of a vessel which was loading at the mill. As evening approached he was told by the captain to go ashore for his supper and return, as they intended to continue loading during the evening. Lumber was transported from the wharf to the vessel by means of a traveling chute arrangement on which the workmen rode between the ship and the wharf. When deceased returned from his supper and the cable was ready for use, the lumber company's foreman told deceased and his companion to "hurry up and get on that traveler"; they did so, and while being transported to the ship, the chute broke, precipitating decedent into the ocean, where he was drowned. Held, that decedent's contract of service included transportation to and from the wharf by means of the chute, and that he was therefore in the course of his employment when he was killed.

[Ed. Note. For other cases, see Shipping, Cent. Dig. $8 342, 349-351; Dec. Dig. § 84.*] 2. SHIPPING (§ 86*)-DEATH OF SERVANTNEGLIGENCE-RES IPSA LOQUITUR.

The breaking of a chute precipitating deceased into the ocean, in the absence of evidence to show the exact cause thereof, was sufficient to raise a presumption of negligence on the part of the defendants under the doctrine of res ipsa loquitur.

[Ed. Note.-For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Ded. Dig. 8 86.*]

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. § 343.*]

5. TRIAL (§ 359*)-GENERAL VERDICT-PRESUMPTIONS-SPECIAL VERDICT.

All presumptions are in favor of a general verdict for plaintiff, and it must control if the special verdict is not absolutely irreconcilable therewith, while answers to interrogatories cannot be aided by intendment, but must be limited and controlled by their specific terms. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 857-860, 875, 877, 878; Dec. Dig. § 359.*]

6. NEW TRIAL (§ 102*)-NEWLY DISCOVERED EVIDENCE.

Where deceased was killed by the breaking of a traveler chute by which lumber was conveyed from a wharf to a vessel and defendants had knowledge of the fact that the mate, who was present at the time and assisted in putting up and operating the appliance, would be a valuable witness for them, and also that his presence could be obtained, but made no application for a postponement in order that he might be present, it was not an abuse of the trial court's discretion to deny a motion for new trial for the alleged newly discovered evidence of the mate which in fact was but cumu. lative of that of the captain of the vessel, though in greater detail.

[Ed. Note.-For other cases, see New_Trial, Cent. Dig. 88 207, 210-214; Dec. Dig. § 102.*]

Appeal from Superior Court, Mendocino County; J. Q. White, Judge.

Action by Maria Sophia Koskela, as administratrix of the estate of Matt Gabriel Koskela, against the Albion Lumber Company and Swayne & Hoyt. From a judgment for plaintiff and from orders denying a motion to set it aside and enter judgment for defendants, and denying defendants' motion for a new trial, they appeal. Affirmed.

Mannon & Mannon, of Ukiah, for appellants. M. H. Iverson and Preston & Preston, all of Ukiah, for respondent.

CHIPMAN, P. J. Action for damages resulting from alleged negligence of defendants

3. SHIPPING (§ 84*)-DEATH OF SERVANT-through which plaintiff's intestate lost his DEFECTIVE APPLIANCES-JOINT LIABILITY.

A ship chartered by S. & H. being about to take on a cargo of lumber at the A. Company's mill, a wire traveling chute, designed to carry lumber from the wharf to the vessel, was rigged, part of the appliances connected therewith being owned by the lumber company and part by the shipowners. All the parts, however, constituted a single appliance intended to transport the lumber, and were necessary to each other. The charterers being short of stevedores, decedent, an employé of the mill company was loaned to them to do stevedore work aboard the vessel, and while riding from the wharf to the vessel on the carrier, it gave way, precipitating him into the ocean and he was drowned. Held, that both the charterers and the lumber company were liable under the doctrine of res ipsa loquitur, in the absence of evidence that the accident was caused by the sole fault of one of them.

life.

General and special demurrers to the amended complaint were overruled, and defendants answered, denying the material averments of the complaint alleging negligence, and pleaded in defense unavoidable accident;that defendants had no knowledge of any defects in the appliances which it is alleged had been carefully inspected prior to their use, and that the "accident was a casualty which no act of the defendants could have foreseen or prevented, and was caused through the breaking of a metal device of the loading apparatus, through a latent, unknown, undiscoverable defect in the metal thereof." The jury rendered a general verdict and also a special verdict, as follows: [Ed. Note.-For other cases, see Shipping, "I. Did the wire cable give way by reason Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*] of any defect in it? Answer: Don't know.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"II. If so, what defect? Answer: Don't | ed, and on this cable runs a "traveler" (I) know.

"III. Did the wire cable give way by reason of any defect in the machinery or appliances by which it was supported? Answer: Yes. "IV. If so, what defect? Answer: Don't know.

"V. Did the wire cable give way by reason of the careless or negligent manner in which the machinery or appliances supporting it were adjusted? Answer: Yes.

"VI. If so, in what way were the appliances or machinery carelessly and negligently adjusted? Answer: The jury does not think that the evidence locates the defect that caused the accident."

Three appeals are prosecuted: (1) From a judgment in favor of plaintiff and against both defendants in the sum of $10,000; (2) from an order refusing to set aside the judgment and enter a judgment in favor of defendants on the special verdict rendered; (3) from an order denying defendants' motion for a new trial. The evidence is brought up on bill of exceptions.

A diagram was used at the trial which we find necessary to an understanding of the facts in the case and is here inserted in this opinion:

from which is suspended the load to be transported between the wharf and the ship (L, M). The traveler is drawn back and forth by means of a steam donkey engine located on the wharf.

The cable, traveler, engine, and, in fact, everything belonging to the chute is the property of the Albion Lumber Company, with the exception that the "falls" and "tackle" (J,K), by which the seaward part of the chute is raised and lowered, is the property of the vessel, which is then being loaded. The "main wire" (G) on which the traveler runs is really two cables joined together at the ship with a "toggle" or "hook" (B). The offshore end of the main wire (A) is permanently moored in the harbor and when not in use this part of the wire rests on the bottom.

On January 17, 1911, the steamer Fulton came into Albion harbor and went "under the wire" to load. Her crew, all employés of Swayne & Hoyt, drew up the offshore wire from the bottom and, by means of a running line, pulled out the main wire from the wharf and then joined the two ends of the

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The general statement of the case found in | wire together by means of the toggle (B) appellants' opening brief is conceded by respondent to be substantially correct "for the purpose of getting the case before the court." We shall avail ourselves of this statement to some extent.

which was permanently attached to the free end of the offshore wire. As a part of making this wire fast the vessel's crew "moused," i. e., tied with small rope, the tongue of the tripper or toggle hook (B).

The loading of the vessel then proceeded by means of the chute and continued during the 17th of January and all day of the 18th. At all times the employés of Albion Lumber Company had charge of the shore end of the wire and the employés of Swayne & Hoyt had charge of the vessel end thereof and attended to the storing away of the cargo. Matt Ga

The defendant Albion Lumber Company has been for many years engaged in the operation of a sawmill at Albion in Mendocino county. As a part of its plant it owns and operates what is known as a "wire chute" at the end of a wharf, by means of which a vessel lying off the wharf can be loaded with lumber or other forest products. At the time of the accident here in issue, the other de-briel Koskela, plaintiff's intestate (hereafter fendant, Swayne & Hoyt, had under charter referred to as Koskela), had been working in and was operating the steamer Fulton, and the lumber yard of the Albion Company and by contract with Albion Lumber Company in its employ. On the morning of the 17th, was transporting lumber and ties from Al- however, the master of the Fulton found himbion to other points. This "wire chute" is self short of stevedores, and he therefore, a device by which a wire cable is suspended with the permission of the Albion Company,

latter went to work on the Fulton in the employ of Swayne & Hoyt about noon on the 17th, and continued in that employ until the

accident.

About 5:30 p. m. on the 18th Koskela and another stevedore, called Jack Paavanen, having been working on the Fulton all day, came ashore for supper. They reached the shore by riding on the traveler across the wire chute, as was the custom in going ashore and returning to the vessel. After these men came across, the wharfman slackened the main wire between the wharf and the ship, so that it dropped to the bottom and another steamer which was lying at the wharf backed over the bight of the wire and then put out to sea. After this was done the wharf foreman, Byrne, set the wire tight by pulling it up again and put it in a position to carry loads over to the vessel. He then ran the traveler out with no load more than halfway to the ship, in order to test the wire, and then ran it back to the wharf. In the meantime, Koskela and Paavanen had gotten their supper and returned to the wharf, as it was proposed to continue loading that evening. When the wharf foreman gave the signal that everything was ready, Koskela and Paavanen took their places on the traveler to be transported back to the ship. The travel er was started out, and when it had gone halfway or a little less, the main wire dropped and caused the traveler with the two men to fall into the ocean. Paavanen was rescued, but Koskela was drowned.

An examination of the apparatus after the accident showed that the trip hook or toggle (B), holding the main wire together, was entirely gone, together with the link (E), by which it had been fastened to the shackle in

the end of the offshore line. The trip hook and link disappeared either by falling into the water, as contended by appellants, or was thrown overboard by some one on the vessel to conceal their defects, as suggested by respondent. This trip hook (B) was a massive contrivance more than 26 inches long, and the link at its offshore end was made of material 11⁄2 inches in diameter. The operation of the trip hook (B) can be understood from the diagram if it is remembered that there is a hinge in it just where it bears against the eye and thimble (N). Unless the tongue (P) is fastened down with the link or shackle (H) the trip hook will open and no longer hold the apparatus in position.

This action was brought against the two corporations to recover damages because of Koskela's death. The amended complaint alleges that Koskela's

"death was caused by the negligence of said defendants committed as follows: * # The

said wire cable by reason of the defects in the machinery and appliances by which the same was supported, and by reason of the careless and negligent manner in which said machinery and appliances were adjusted, gave way and the deceased without fault on his part was * * instantly killed. That said death of said deceased was the direct consequence of the defective and imperfect appliances and machin

ery of defendants and the negligent and careless manner in which same were used and adjusted, as above set forth, which said defects were well known to the defendants and each of them, and were unknown to the plaintiff. The said defendants ordered the deceased to undertake said journey to said vessel, well knowing that the said machinery and appliances for taking him there were defective, insecure, unsafe, and dangerous, and also well knowing that said machinery was adjusted in a careless and negligent manner."

Witness, George Olsen, called by plaintiff, was at the time the Albion Lumber Company's foreman on the wharf. He testified, in explanation of the operation of the apparatus, that when not in use the entire offshore wire from the thimble "N" and including the links of the small chain "Q" were dropped into the sea and rested at the bottom.

"When the steamer is unloading and you trip the wire, this is untripped first [witness here this block [witness here indicates block marked indicates on diagram hook marked "C"] and "D"] and the little wire (S') goes ashore, then you trip the big wire and the trip and this whole thing [witness indicates wire and trip of this wire marked 'A' is under water too." marked "A," "B"] goes overboard. The end

He testified further, that two or three months before the accident he assisted in overhauling the apparatus. He testified: in good order. These two wires (offshore wire "It was my duty to see that the rigging was A and inshore wire 'G') are fastened together in this way: You pull the inshore wire out to the boat and raise it up and slip that trip hook (B) through the eye (N) of the inshore wire. After putting that link marked 'H' on there, they place a 'mousing' on outside that. I don't know whether that was done on that day of the loading of this vessel. I did not consider it a part of my duties to see whether that was fastened together right or not. On the day the steamer began to load I didn't fasten it;

I was not aboard the boat. * * * We had some trouble with a part of the wire or the rigging of the vessel on the day before the accident."

Over defendants' objection he was permitted to explain the trouble:

*

"The hook and this block here [indicating on diagram hook marked "J"] gave way and dropped the wire out aboard the vessel while the traveler was out there, and split the woodwork on this traveler here. * * This block here [indicating block marked "K"] belonged to the steamer; it is used to hoist the wire up and down, and this hook and block both here [indicating "J," "K"], that belongs to the steamer, but the block there [indicating block marked, "D"] belongs to the wire. It was this hook here on this block [marked "J"] which broke."

He testified that the next morning they be gan to load the vessel; ran the traveler out to see that it would work; did not examine to see whether the hook arrangement belonging to the vessel had been fixed; there might have been some little sling trouble at the vessel the day of the accident, but he was not certain. He testified that he went aboard the vessel about a half an hour after the accident and found the end of the inshore wire uncoupled from the offshore wire at the connection with the trip hook or toggle (B), and"hanging in the rigging of this thing-right in the rigging [indicating on diagram point marked

"J"]

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and the eye of this wire was gram]. Somebody took a knife and cut the rope right here in this block [indicating on diagram off and then lifted this hook [indicating point point marked "D"]. The weight of this inshore "B"] and unhooked it. I didn't see him put this wire would naturally pull it toward the shore. rope back. I didn't see them couple the wire The offshore wire was not there at back. I don't know whether they put the rope all. This bumper (D) was hanging right over back on it or not. *They were hauling the vessel. I did not find anything with refer- about 50 ties at a load across there on that day. ence to this trip hook [marked "B"]. Something Ties weigh from 100 to over 200 pounds. They was said about looking after it. I did not look were not carrying any load at the time Kosfor the offshore end of the wire or the coupler kela and I got on the traveler. * * * There at this time of night." was nothing on the traveler to carry except we two men.'

It appeared that when Koskela started to return to the vessel it was at the hour of

about 7 p. m. and it was quite dark, and "raining slightly." He testified that he proposed to look for the coupler.

A.

"Q. Who did you propose it to? A. To the captain. Q. How was it you didn't look? Because the captain said it was too dark, and did not want to look for it."

Witness Johnson was working "longshore" on the Fulton, and saw "the wire go down" at the time of the accident. He testified:

*

**

"I know what shape the coupler part that It was in good shape, and was tied. I don't couples the two wires together was in that day. accident. At the time I jumped out of the way. know whether it was tied at the time of the ** All of the crew was around there The foregoing questions and answers were when I jumped. I did not see this coupler after given over defendants' objection. "I did not board, the whole thing stood on top of the railthe wire fell. The wire didn't go quite overhear any statement made by the captain as ing. I didn't see the offshore wire. I didn't to what had become of the coupler." He tes- look or help them look for the end of the tified that he examined the outside or off-wire that night. I didn't help them look for shore wire the next morning and found noth- the coupler. I didn't hear anybody say any ing on the end except the shackle or clevis tain say anything about this machinery or any thing about the coupler. I didn't hear the cap(F). "The rest was gone," i. e., (B), (E), from part of it, but when we was loading he told us that point to the eye or thimble at the end of to keep out of the way, that is all he said. He the inshore wire. He was not certain wheth- told us to keep out of the way, 'it ain't very safe er the tripper (C) was here. The shackle or around the load;' that is all I heard him saythat it was not very safe around there." clevis (F) was not broken, and nothing on it showed a strain.

"Nobody dragged the ocean or sent any divers down to find that hook. I didn't look for it. I didn't see anybody else look for it. I have not seen the coupler since the accident."

He explained that the office of the little chain and tripper (C) was to hold the strain from the traveler (I). He got all of this chain

and the tripper after the accident, but could not tell whether it was on the end of the inshore or outshore wire. He also testified that the "mousing" (R) was rope wound around the shackle (H) "and is always put on when you put the wire out. Every time you put the wire out it is customary to put on new mousing."

Witness Paavanen (Pavnen) was Koskela's companion and was on the traveler with Koskela when the latter was drowned. They had gone ashore for supper, and were, as directed to do by the captain of the vessel, returning to continue the work that night. His description of the accident is not material. He testified that during the day he worked the 18th, "something broke about the rigging of the vessel." Over objection he was permitted to describe what happened.

"This pulley broke off [indicating on the diagram marked "K"], and this whole thing [indicating traveler, bumper, and wire tripper] broke down into the hold of the vessel and broke the framework, and then they had to fix it. Q. Did that break let the wire down? A. Yes, sir. I do not remember what time of day this break was, but I thought it was in the forenoon. It was a couple of hours before they fixed it up.

After they fixed it we loaded more lumber or ties that day. I am also positive that it was the same day that I fell into the ocean. While they were fixing this traveler, they uncoupled the two wires. They had a rope around

He testified that he saw the captain go ashore on the wire and return with the load a dozen times that day.

"He told us it would not be safe every time he was aboard the ship. When he was not there the mate told us. He never mentioned what was the matter. Neither the mate nor anybody else ever told us what was the matter."

On cross-examination he testified:

"When a load of ties goes out there on the steamer, and as it goes over the vessel it swings back and forth considerable. It always does. It is sure dangerous to stand around in the way of that and have it strike you."

On re-examination he testified:

"The captain and the mate surely made an examination of the rigging of the vessel in my presence while I was there that day. I don't know how many times they did that. He didn't say it would not be safe while be was looking at that, but while he was running loads. He said the same thing every time but he didn't tell me what it was that would not be safe."

Plaintiff rested her case at the close of Johnson's testimony, and defendants moved for a nonsuit, which was denied. The motion presents certain questions which may as well be decided at this point as elsewhere. The grounds of the motion were: That the evidence does not show that Koskela was in the employ of either of defendants when the accident occurred; that it does not tend to prove negligence of either of the defendants. or that deceased in the course of his employment was directed by defendants, or either of them, to get upon the traveler; or that the cable gave way by reason of any defects therein; or that it gave way by reason of any de fect in the appliances or in the negligent man

there were any defects in the machinery or its adjustment.

[1] There was evidence that the deceased was told by the captain of the vessel to return after getting his supper; that the traveler was used for transporting the workmen, and that when deceased returned from his supper to the wharf and the cable was ready for use, the lumber company's foreman said to deceased and his companion, Pavnen: "Hurry up and get on that traveler." It is true that there is no evidence that deceased was under pay while at his supper, or while he was returning on the cable. Strictly speaking, he may not have been at the time in defendants' employment. But we think it a fair inference from the evidence that the contract of service included transportation to and from his place of work by the very means through | which he lost his life, and we think that the same rule should apply as would have been applicable if, without fault of his, he had been injured by the breaking of the cable while at work on the vessel.

[2] And that brings us to the question whether the circumstances thus far disclosed afforded reasonable evidence of want of care on defendants' part sufficient to require explanation by them. The rule or maxim, res ipsa loquitur, is stated as follows:

"When a thing which caused the injury without fault of the injured person is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of explanation, that the injury arose from the defendant's want of care." San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 99, 32 Sup. Ct. 399, 56 L. Ed. 680; Hill v. Pac. Gas & Elec. Co., 22 Cal. App. 788, 790, 136 Pac. 492.

It is not contended that deceased was at

care.

fault, and it seems to us that the undisputed facts show that the thing which caused the injury was under the exclusive control of the defendants, and that the injury was such as in the ordinary course of things would not have occurred had defendants used proper The appliances for loading vessels were such as were in ordinary use and, presumably, had been adopted by defendants as proper and suitable for the purpose designed. It is inconceivable that defendants would have adopted these means had they supposed that in the ordinary course of their operation, with proper care, such accidents as the one here were likely to occur. It is not necessary to refer to the many and great variety of cases in which the rule has been applied, to show that the present case comes plainly within its operation.

[3] Nor have we any doubt upon the remaining question presented by the motion, namely, whether or not defendants were jointly liable, if liable at all.

Appellants contend that:

"The rule of res ipsa loquitur does not and cannot apply, for the reason that there cannot, under any view of the evidence, have been a

joint liability by the defendants, and the evidence leaves it impossible to determine which if either defendant is liable."

The appliances used were in part owned by the lumber company and in part by the shipowners. All of these parts constituted the means of transportation, and were necessary to each other. It was also necessary that both parties should assist in the operation of the appliances, and they were jointly operated by and for the joint benefit of both defendants. In the absence of evidence tending to show by one of the parties that the accident happened by reason of the fault alone of the other, for which the former was in no sense responsible, we think it must be held that both were liable.

Appellants cite Harrison v. Sutter St. Ry. Co., 134 Cal. 549, 66 Pac. 787, 55 L. R. A. 608. In that case the injury was to a passenger riding on a street car, and was caused by its colliding with a brewery wagon belonging to the National Brewing Company. Both companies were made defendants, and the contention was that, under the rule of res ipsa loquitur, a presumption of negligence arose against both parties. The court, speaking of this principle, said:

"In the very nature of things it cannot be made to apply in favor of a plaintiff seeking to recover damages for injuries against two defendants wholly independent of each other; it being an open question as to which defendant had control of the particular instrumentality that caused the injury."

Appellants in their quotation omit to add the further statement of the court:

"If it were a conceded fact in such a case [or, we may add, appeared from the evidence] that the instrumentalities of both defendants caused the injury, probably the principle could be applied, but not otherwise."

The

The undisputed evidence was that this very motion for nonsuit was rightly denied. situation existed in the present case.

Capt. Jacobson, master of the steamer Fulton, was called by defendants, and testified that he assisted in adjusting the appliances aboard ship.

right there and saw all of it, and there was "When we got this tripper up on deck I was no visible defect. That tripper did not go back in the water between that time and the time the accident happened. We didn't load any more that night."

He testified that "once the hook up above gave way" and also "the chain [marked “Q” on diagram] that takes the strain of the carriage"; these "were fixed and we kept on loading." He testified that he had to wait for the steamer Pomo to go out, and he told deceased and Pavnen to go and get their supper; that the bumper and the whole business was sent ashore and the inshore wire was let

down to the bottom of the sea, and the Pomo went out over the wire.

"I was on deck when this was done. Then we started up again. We sang to them on shore to heave tight the big wire, and then after that we got out the small line. * * * Then we rigged up our single and double donkey falls, the big wire was there already.

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