Ocean Steamship Co. v. Cheeney

Simmons, Justice. We think the court erred in not gi’anting a new trial in this case. The evidence clearly7 shows that the company had placed a man at the hatchway to give notice to the hands below. The foreman testified that the hatch-tender was at the hatchway about fifteen minutes before the accident, and was in the discharge of his duty. Middleton, one of the plaintiff’s witnesses, testified that there were some bales that came down before the one that hit Cheeney, and when they came, a warning was [283] given and all got out of the way and nobody was hurt. This shows that a person had been placed to attend the hatchway, and gave warning to those below; but it seems that no warning was given when the bale-which hurt Cheeuey was thrown down. The hatch-tender was usually the engine-driver or one of the hands employed to assist in loading the vessel. It appears that no special person was designated for this service, but that the hatch-tender “ was taken indifferently from the laborers.” He was engaged by the company in the same business that all the other hands of the gang were engaged in, to wit, the loading of the vessel with freight. He was therefore a co-employee with the other persons engaged in this business; and if, when stationed at the hatchway for the purpose of giving notice to the hands below, he failed to give that notice, or if he absented himself frpm the hatchway, and while absent, some other person engaged in the business threw the bale down into the hold without notice to those below, and the plaintiff was thereby injured, it was in consequence of the negligence of a co-employee; and under the law he cannot recover for such negligence. We do not think it makes any difference whether the bale was thrown down when the hatch-tender was present and failed to give notice, or whether in his absence some other co-employee threw the bale down ; in either case it would be the negligence of a co-employee. It would be the negligence of the hatch-tender in not giving notice, or in absenting himself from the hatchway; or in case it was done in the hatch-tender’s absence, the negligence of some other co-employee in throwing the bale down without notice. While this plaintiff seems to be a poor man and to have been dreadfully hurt, and while we sympathize with him greatly in his misfortune, we are compelled [284] under our sense of duty to hold that under this evidence the law does not entitle him to recover from this steamship company. Judgment reversed.