Norden v. Chas. R. McCormick Lumber Co. of Delaware

GILBERT, Circuit Judge. The plaintiff in error, the plaintiff below, was one of a gang of stevedores employed by the defendant in loading one of its vessels. The vessel was moored to a dock. At about 6 o’clock p. m. the mate gave an order to “haul ship,” which meant to move her forward parallel with the dock. This was done by a windlass aft hauling on the head line, which was attached to a cleat on the dock. In moving the vessel forward the plaintiff was struck by the head line and thrown against the dock, and fell on a fender log, whereby he was injured. He testified that the mate told him to “move that head line”; that in attempting to remove the line from the cleat he found there was not enough slaek, and he called for slaek, but that, instead of giving slaek, the man in charge of the windlass turned on the steam, causing the line to snap tight and throw him up in the air and down into the river. The action was brought under the Employers’ Liability Act of the State of Oregon (Or. L. § 6785 et seq., as amended by Laws 1921, p. 38), and negligence was charged, in that (1) the method adopted by the mate in hauling the ship was negligent; (2) the windlass man was negligent, in that he drew the head line taut instead of paying out slack; (3) it was dark and foggy, and the vessel was not equipped with lights, so that the windlass man could see the plaintiff. At the close of the evidence the court below directed the jury to return a verdict for the defendant. That ruling is assigned for error, and the question presented is whether there was evidence upon which the case should have been submitted to the jury. As to the first ground of negligence charged, which was that the mate should have required the wraps of the head line on the niggerhead to be removed, and the line paid out to the plaintiff when he called for slack, instead of which the method adopted was to attempt to give slaek line by coming baek on the windlass, without removing the wraps of the line around the niggerhead, the plaintiff testified that the method of procedure customarily followed when they are about to give. slaek for the purpose of moving the head line was to take the line off the nigger-head and pay it off by hand. But there was no evidence that the method adopted was a negligent one. All that the record discloses as to the method of work is that the mate ordered the longshoremen to “haul ship.” It is contended that he should have taken his position on the forecastle head and actively directed and controlled the work, that such was the customary method of operation in hauling ship, and that under the provisions of the Employers’ Liability Act of Oregon it was the defendant’s duty to exercise constant supervision over the work. Passing by the question whether, under a charge of negligence which challenges only the method of work adopted by the defendant, it may be shown that there was negligent failure to supervise the work, we are of the opinion that the contention is unsound. Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 P. 139; McGrath v. Thompson, 231 Pa. 631, 80 A. 1109; Balewski v. Carnegie Steel Co., 243 Pa. 366, 90 A. 193. The plaintiff testified that, in carrying on the work of moving a ship along a dock, there had been a general custom up and down the coast, “in force ever since I have been employed in various ports for some 10 years.” But the Employers’ Liability Law of Oregon, while it holds the employer responsible for failure to use every care and precaution to make safe the working place of the employé and the machinery by him used, does hot go so far as to require him to supervise every detail of the labor of each employé in the ordinary course of the work, and the court below properly ruled that there was no duty imposed by law upon the mate to stand by the longshoremen and see that they .did their work in the usual and ordinary way. As to the second charge of negligence, that the person who operated the windlass tightened the head line, instead of making it slack, in response to the plaintiff’s eall for slaek, the plaintiff testified that he saw a man in charge of the windlass; but he did not identify him, and the record is silent as to who he was or what authority, if any, he had to supervise or direct the plaintiff. There is nothing to show that he was not one of the sailors and a coemployé of the plaintiff, or that the defense of fellow-servant does not apply. The Employers’ Liability Act makes that defense inapplicable only where the injury “was caused by one in authority over the injured servant, and on account of such superiority the employee could not have been expected to exert such an influence over his foreman in the matter of care and caution, as over a coservant who stood upon an equal [570] footing with him.” Browning v. Smiley-Lampert Lumber Co., 68 Or. 502, 512, 137 P. 777, 780. We. cannot assent to the proposition that the words “or other person,” as used in the act, following the specification of “superintendent, manager, foreman,” enlarge the scope of the act, so as to exclude the defense of fellow servant in every case of negligence of an employé in charge of any machine or device used in the employer’s work. The act makes the defense inapplicable only to persons “in charge or control of the works, plant, machinery, or appliances.” Or. L. § 6789. Bottig v. Polsky, 101 Or. 530, 201 P. 188. Here the plaintiff and the man in charge of the windlass were engaged in a common purpose, the warping of .the schooner forward alongside the dock, under the direction of the mate, the windlass man at one end of the head line, the plaintiff at the other end, both doing work upon an equal footing, and neither being required to obey the directions of the other. In this connection the plaintiff contends that the provision of the Merchant Marine Act (41 Stat. 988, amended by 43 Stat. 467, and 43 Stat. 947), which abolishes the fellow-servant rule should have been applied, notwithstanding that at the beginning of the trial he made his election to try his case “within the terms” of the Employers’ Liability Law. Tbe proposition wbieb be presents to this court was not presented to tbe court below. In reviewing tbe proceedings of that court on writ of error, we are limited to errors in its rulings, and in an appellate court the plaintiff in error may not mend his hold and present a ground of recovery not suggested to the trial court. New York, etc., Railroad Co. v. Estill, 147 U. S. 591, 13 S. Ct. 444, 37 L. Ed. 292; Illinois Cent. R. Co. v. Egan (C. C. A.) 203 F. 937; Missouri, K & T. Ry. Co. v. Wilhoit (C. C. A.) 160 F. 440. It is said that the Merchant Marine Act indicates the intention of Congress to abolish the fellow-servant rule as to all members of a crew of men .employed to load a ship in interstate commerce, whether working on the ship or on the dock, and that such is the implication of the decision of the Supreme Court in International Stevedoring Co. v. Haverty, 47 S. Ct. 19, 71 L. Ed.-, not yet [officially] reported. We do not so understand the decision, but, if an intention is to be ascribed to tbe aet different from the import of tbe words in which it is phrased, we must leave it to that eourt to declare it. Concerning tbe third specification of negligence that tbe light was inadequate, tbe plaintiff testified that it was very dark on tbe dock; that be could see tbe windlass man, but that the windlass man could not see him, for tbe reason that tbe former was on the forecastle head, lower than the dock by 10 or 15 feet, while the plaintiff was standing back a little distance from the edge of the dock. Such was the plaintiff’s final explanation of the reason why he could not be seen. In view of that evidence th'e court below ruled, properly, we think, that the failure to light the wharf was not the proximate cause of the injury. According to the plaintiff’s testimony, more light could not have made him visible to tbe windlass man for tbe line of vision was bisected by tbe dock. Tbe judgment is affirmed.