Wold v. Elder, Dempster & Co.

Kelly, P. J.: The jury have found, as they might have found under the evidence, that the crack in the plate was discoverable by inspection, and that it was visible on the outside of the plate, the fracture showing rust extending over one-third of the plate. True, this plate was forty-five feet up in the air. But it was the “ keystone of the arch.” On its security depended the safety of the life and limb of all persons using the derrick. The steamship and this eye plate were exposed to stress of weather, storm, rain, snow and sleet, the bolt was subjected to strain every time cargo was loaded or unloaded. We do not know the history of the vessel during the six months. It is conceded that no examination was made of this plate. It was forty-five feet above the deck, and the fracture was visible on the upper surface only, but it was easily reached. After the accident, when defendant’s acetylene burner was sent to take off the portion remaining, and he objected that it was too windy to do the work, defendant’s shipyard manager had no difficulty in going up to the cross-tree where the plate was located and observing the plate so that he testifies to absence of rust at the break. It seems to me, in view of the great danger to the men on deck caused by any defect in this plate, the jury were justified in finding that the officers of the ship should have caused some inspection to be made of the apparatus before they allowed it to be used for [466] unloading heavy cargo. When the general foreman of the steve-' dores reported to the chief officer that he was ready to go to work unloading these mahogany logs, the officer said: “ ‘ There is your booms, everything is all right. What do you think about it? ’ And I says, ‘ If you say so, it is all right.’ I says, ‘ How about those logs? ’ He said, ‘ It took the logs in,’ he says, ‘ there is no reason why they shouldn’t put them out.’ ” There must have been some reason for the break. The boom was rigged to lift five tons. It broke in lifting a weight of two tons. Why? Plaintiff did not rely on the doctrine of res ipsa loquitur. He gave evidence of a patent defect, a crack in this all-important plate. There was an endeavor on the part of defendant to show that undue strain in lifting the logs, i. e., if they were “ snaked ” out from the space under the decks outside the square of the hatch, or if in lifting or lowering them the winchman did not operate his machine properly, if there was a jolt or jar, this might cause the bolt to break. But there is no evidence that any such thing occurred. On the contrary, plaintiff’s evidence, and the evidence of the winchmen, is that there was no undue strain, no “ snaking ” out of the logs from under the deck, no improper handling of the winch and falls connected with the logs. I think the jury was justified in finding on the evidence that this plate was cracked before the operation of unloading the vessel began, that the defect in the plate could have been ascertained by reasonable inspection, and it is conceded that there was no inspection. I think the evidence presented a case for submission to the jury as to defendant’s negligence, and the learned trial justice submitted the issues in a charge to which no exception was taken by defendant. Defendant, appellant, excepted to the dismissal of the complaint as to its codefendant Turner & Blanchard, Inc., and contends that this was error. On the record I think that plaintiff failed to make out a case of negligence against his immediate employer and that the learned trial court was right in this ruling. The complaint charged that the accident was occasioned by the negligence of both defendants. If the appellant was negligent and such negligence was a proximate cause of plaintiff’s injuries, the appellant was liable without reference to the negligence of its codefendant. In fact, the learned trial justice charged the jury that defendant would be liable only in case they found that, its negligence was the sole cause of the accident. My understanding of the law is that where injury is the result of concurring negligence of two or more parties, they may be sued jointly or severally; the fact that one [467] of the wrongdoers may not be held accountable to the injured party will not operate to discharge the other, and the injured party may sue one, any or all of the joint tort feasors. (Addison Torts [6th ed.], chap. V, p. *94; Clapp v. Town of Ellington, 87 Hun, 542, 544; affd., without opinion, 154 N. Y. 781; Kain v. Smith, 80 id. 458; Creed v. Hartmann, 29 id. 591; Roberts v. Johnson, 58 id. 613; Devlin v. Smith, 89 id. 470; O’Doherty v. Postal Telegraph-Cable Co., 134 App. Div. 298; Kirk v. Sturdy, 187 Mass. 87.) “ Persons who co-operate in an act directly causing injury are jointly and severally liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independently of each other.” (1 S. & R. Neg. [6th ed.] § 122, and cases cited.) The judgment and order should be affirmed, with costs. Present — Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ. Judgment and order unanimously affirmed, with costs.