Larssen v. Delaware, Lackawanna & Western Railroad

Goodrich, P. J.: In March, 1897, a steam. tug belonging to the defendant was towing three sea-going barges also owned by the defendant' from Hoboken, N. J., to Newport, R. I. ■ The first barge was the ^ Oeeamus,. having a crew consisting of master, two deckhands (one of whom was the plaintiff) and a cook. This barge was attached to the tug by a long hawser, and tailed on to her after bitts by another long hawser was the barge Shielcashinny, and still astern of the latter was a third barge similarly attached to the second barge. The two stern barges were bound for Boston. A¡s the tow neared Newport the tug stopped and signalled the Oeeamus to cast off the two stern barges. Captain Griff, the master of the Oeeamus, [203] ordered the plaintiff to cast the hawser off the stern bitts, and the plaintiff unlashed the hawser and was paying "it out when the master of the Skickashiriny called out not to let go. Captain Griff told the plaintiff to make the hawser fast again, and was told by him that there was not enough left aboard to do so. Captain Griff told him: “ Never mindj * * * get a turn on it and hold on to it.” The plaintiff said: “ It is dangerous; the boat will be going ahead in a minute.” The captain told him to “ take the turn,” and in attempting to obey the order he and the cook got a turn of the hawser about the bitts and held on. The tug started up and the strain of the stern boats lifted the hawser out of the water. The master of the SMokashinmy called out to let go, and Captain Griff repeated the order to the plaintiff, who said it was dangerous, but upon a repetition of the order both men let the hawser go. The cook jumped away and was not injured, but the plaintiff was struck by the end of the hawser, thrown down upon' the deck and had his leg broken. This was about ten o’clock in the morning. The master sent for a blanket and covered up the plaintiff as he lay upon the deck. The Ooeanus was towed into Newport harbor, where she anchored about ten-thirty, and the plaintiff, after lying upon the deck for more than an hour, crept into the galley, At six o’clock that afternoon the tow arrived in Providence, where the plaintiff was sent to a hospital. He claims that the defendant is responsible for his original injuries and also for their aggravation, on the ground that he ought to have had medical attention at Newport, instead of being compelled to await the arrival of the tow at Providence. The court dismissed the complaint at the close of the plaintiff’s case, and appeal comes to this court. The complaint contained no allegation that the master was incompetent. It only alleged “ that the said tug and tow and said barge Ooeanus■ were so carelessly, negligently and unskillfully managed and navigated by the defendant, its agents, servants and masters of said tug and said barge Ocecmus and the barge next astern of her, that in casting off the hawser from said barge Ooeanus plaintiff was struck.” This is the gravamen of the action, simply and purely the negligent act of the master of the barge. There was another allegation “ that said injuries and damages [204] were aggravated through the negligence, carelessness and improper treatment of the plaintiff on the part of the defendant, its agents -and servants, in that they did not have plaintiff’s wounds and ailments attended to in season, hut. negligently delayed to send plaintiff to a hospital or procure medical attention for him until six o’clock in the evening.” The case seems to fall within the principles laid down in Gabrielson v. Waydell (135 N. Y. 1) which was an action for a malicious assault upon the high seas. The court was called upon to consider the relations of the master to the seamen, and held, Judge Gray writing, that they were fellow-servants, engaged in one common employment; that the owner “ has performed his duty when he has furnished to those who are employed by him a reasonably safe place, appliances adequate to the purposes of the employment, and when he has appointed as fellow-servants in the undertaking proper persons, competent for their positions. After that, for what may happen from the risks of the employment, or from the negligence and torts of fellow-servants, he will not be responsible.” The court also cited with approval the doctrine of Keegan v. Western R. R. Co. (8 N. Y. 175), wkeré Chief judge Rugóles said : “ Where the injury results from the actual fault of a competent and careful agent (as may sometimes happen) the fault will not be imputed to the principal when the injury falls upon another servant, as it will where the injury falls on a third person, as for instance on a passenger on a railroad. In the case of a passenger the actual fault of, the agent is imputed to the principal on grounds of public policy; ih the case of a servant it is not.” Loughlin v. State of New York (105 N. Y. 159) was a case where the plaintiff was injured while in the employ of the State on a boat under the command of one Captain Wells. Loughlin was digging and wheeling clay t© the boat, and Captain Wells had loosened the overhanging earth, which fell upon and injured the plaintiff. ■ Judge Andrews said (pp. 162,163): “ The liability of the piaster, when the negligence was not his personal act or omission, but the immediate act or omission of a servant, turns, as was said in Crispin v. Babbitt (81 N. Y. 516, 521), upon the character of the. act, and this was but the enunciation of the established doctrine in this State upon the subject. If the co-servant, whose act caused the injury, was at [205] the time representing the master in doing the masters duty, the master is liable; if, on the other hand, he was simply performing the work of a servant, in his character as a servant or employe merely, the master is not liable. The injury in the case last supposed would, as between the 'master and the servant sustaining the injury, be attributable solely to the immediate author and not to the master. In harmony with the general principle that the character of the act is the decisive test, it has been repeatedly decided in this court that" the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule nor make the master liable.” In Hedley v. Pinkney & Sons Steamship Co. (L. R. 1892 [1 Q. B.] 58) it was held, Lord Esheb, Master of the Rolls, writing, that the captain and crew employed in the navigation of a ship by the owner are fellow-servants engaged in a common employment, and, therefore, the shipowner is not liable to an action for the negligence of the captain, by which one of the crew was injured; that the captain “is a superior servant and the seaman is an inferior servant, bound to obey the orders of the captain; but they are both servants of the same master, employed in the same operation. They are, therefore, fellow-servants engaged in a common employment. The common law of England is that where fellow-servants are engaged in a common employment, whether one is inferior to the other, whether one is bound to obey the other or not, the master is not liable for injury occasioned to the one through the negligence of the other.” I can discover no difference in the principles which govern the relations of the master of a vessel to the crew and the relations of a conductor of a railroad train to the brakemen; and in New England Railroad Co. v. Conroy (115 U. S. 323) it was held that the negligence of a conductor, which caused the death of a brakeman, was the negligence of a fellow-servant, for which the company was not responsible. As the defendant is not responsible to the plaintiff for the negligence of the captain, it follows that the complaint, in order to sus- . tain the action, should contain an allegation that the employer was [206] negligent either in employing or retaining, the servant (2 Thomp. Neg. 1052, and cases cited), and the complaint in the ease at bar contains no such allegation. In the Gabrielson Case [supra) the court held thatin determining the liability of the defendant it should be guided by the principles of the maritime law, as the plaintiff’s employment was a maritime contract. Judge Addison Beown, of the District Court of the United States for the southern district of New York, an eminent admiralty judge, held, in The City of Alexandria, (17 Fed. Rep. 390), that “ the navigation of a ship from one port to another constitutes one common undertaking or employment, for which all the ship’s company in their several stations are alike employed. Each is in some way essential to the other in furtherance of the common object, viz.: the prosecution of the voyage. Each one, therefore, upon the principles laid down in the common law courts, takes the risk of any negligence in- the performance of his duties by any of his associates in the common employment.” Similar doctrine is enunciated in The Queen (40 Fed. Rep. 694). It follows that the complaint was properly dismissed. One exception requires consideration. The court excluded, under plaintiff’s exception, evidence to- show that the plaintiff asked to be put ashore at Newport, or to call a physician to attend him thére. The alleged negligence of the master in delaying medical attendance is set out in the allegation of the complaint .above cited, not as a separate cause of'action, but "only asan aggravation of the damages resulting from the original negligence. As sudh it must fall with that cause of action as it is .subsidiary thereto. The, exclusion of the evidence was not, therefore, legal error. The judgment should be affirmed. Judgment unanimously affirmed, with costs.