Grice, Administratrix v. Hann

The opinion of the Court was delivered by

This is an appeal from an order on nonsuit, in favor of the defendant, Harry R. Hann, after the case against the defendant, Grant Collins, was withdrawn from the jury, without prejudice.

In order to understand the questions involved, it will be necessary for the complaint (except the formal parts *117 thereof), the reasons assigned by his.Honor, the presiding Judge, in granting the nonsuit, and the exceptions, to be reported.

There was testimony to the effect that E. C. Ward was in charge of the dredge,' as the representative of the owner, Harry E. Hann, at the time of the injury, that-some of the machinery which was used was old and defective and that the place where E. C. Ward, as the representative of the master, directed the deceased to do the work assigned to him was unsafe. His Honor, the presiding Judge, was, therefore, in error in granting the nonsuit.

Reversed and remanded for new trial.

(dissenting): It appears to me that the plaintiff has alleged certain specific acts of negligence in the complaint, and now seeks to recover damages, or rather in this appeal to reverse the order of non-suit, . upon an entirely different theory. She brings her action against the intestate’s employee, H. E. Hann, and a co-employee, Grant Collins, alleging that the injuries resulting in the death of the intestate, James A. Grice, were caused by the joint and concurrent negligence of the employee, Collins. In a general statement (paragraph 4), the complaint alleges that all of the acts of negligence specified were the joint and concurrent act of those two defendants. Among these acts of negligence are breaches of duty which the defendant, Hann, as master, owed to the intestate, and in which the co-defendant, Collins, could not have participated and could -not have been responsible for. Other acts of negligence are necessarily charged to ■the co-defendant, Collins, as the representative of the master for whose negligence the master was sought to be held liable; the complaint alleging that Collins was in the employment of Hann, and as such was engaged as a watcher or lookout upon said dredge, whose duty it was to give signals to warn plaintiff’s intestate and other em *118 ployees of any danger in the operation of said derrick in said, dredging.” The particular acts of negligence of a servant of* Hann for which he was sought to be held liable are plainly alleged in the complaint to have been those of Collins.

The plaintiff is now endeavoring to reverse the order of nonsuit, not upon the ground that the evidence tended to establish these alleged acts of negligence on the part of Collins, but that it tended to establish acts of negligence on the part of Ward, another employee, whose conduct is not relied upon in the complaint, and whose name is not even mentioned.

The inquiry should therefore be: (1) Is there any evidence in the case tending to show any breach as alleged of the duty of the master? (2) Is there any evidence in the case tending to show any breach as alleged of -the duty of .the defendant, Grant Collins?

It is apparent that under the allegations of the complaint the plaintiff has no right to rely upon any inferences of negligence which might be drawn from the conduct of Ward, for the simple reason that there is nothing in the complaint to connect Ward with the injury, and the defendant is entitled to a restriction of the plaintiff to the acts of negligence alleged in the complaint.'

The facts, which are not in dispute, appear to be as follows: The defendant, Hann, was a contractor, engaged in dredging a creek; he was using what is called a “dipper dredge,” which is a boatlike affair, operated by steam. Prom the front platform of the dredge a boom or crane extends at an angle, reaching out some distance ahead of the dredge proper. Upon this boom or crane is another appliance, a shaft, upon the end of which is attached a dipper or bucket. The boom or crane, the lower end of which is attached to the platform, has a lateral movement, and the shaft to which the bucket is attached a vertical movement; by means of pulleys, wire cables, and levers, *119 the boom or crane, is shifted from one side of the stream to the other, and the bucket is lowered from one side of the stream to the other, and the bucket is lowered into the mud, scoops up a load, is raised to the level of the bank, shifted by the lateral movement of the boom to the edge of the bank and by the release of the doors at the bottom-deposits its load on the bank. In the progress of the work submerged logs were encountered, which were difficult to balance on the bucket and raise. Just before the accident a particular log had been encountered. Several efforts had been made to balance it on the bucket and raise it out of the stream and on to the bank without success. At this time there were three men engaged in the operation of dredging—Grant Collins, E. C. Ward, and the intestate, J. A. Grice. Their relative ranks will be discussed later. Ward was the leverman, in charge of the steam power and the lever and other appliances which shifted the boom or crane into position and lowered, raised, shifted, and unloaded the bucket. Collins was on the platform to give signals to Ward, the leverman. Grice was the machinist of the outfit. After the efforts to raise the sleek log with the bucket had failed, it was decided to raise it to the surface of the water and chain it to the bucket; Ward, the leverman, “requested” Grice, the machinist, to take a pair of tongs and a chain, and when he raised the log to the surface to chain it to the bucket. Collins was directing the movement and in a position to warn Grice of danger. Evidently when the log was raised to the surface it was balanced on the bucket, and the idea of chaining it was abandoned by Collins. In the meantime Grice was walking towards the point where the bucket would emerge, along a narrow ledge between the water and the comparatively steep side of the cut. The log balanced upon the bucket was raised to about the level of the bank of the cut, and as the attempt was made to shift the boom or crane around and deposit the log on the bank out of the way, one end of *120 it struck either the bank or other' obstruction, the other end slued around, striking Grice and fatally injuring him.

Much attention is given both in the testimony and in the printed arguments to the question whether Ward or Collins was the representative of the master upon the occasion in question. The appellant in his printed argument admits that Collins was working under Ward, and could not therefore have been the representative of the master, although his complaint is based upon the theory that Collins was such, so far as the negligence particularly charged to him was concerned. Accordingly, if the negligence was that of Collins, the plaintiff admits inability to recover, as under those circumstances Grice and Collins would clearly be fellow servants.

As to Ward: The conclusions of the Circuit Judge upon this subject are clearly sustained by the testimony. He says:

“The testimony all goes to show that Mr. Chitwood, the man in charge, the representative of the master, Hann, was not there, and that if there was any negligence on the part of the master that resulted in this accident, it was negligence of Ward. Mr. Chitwood, who was in charge of the whole work, and Ward himself, in answer to my questions, said that Grice was in charge of the work generally in the absence of Mr. Chitwood, but that he was not to interfere with Mr. Ward in the management of the machinery part of the work. And Mr. Chitwood, the man in charge, who assigned these various duties, said, in answer to my question, that, under the employment of Grice he was not subject to order of Ward, and he did not have to obey his instructions, or his directions, or his orders, but that he was merely expected, while he was not engaged in work he was actually employed to do, to render such assistance as he might. I canot see that he could be anything more than a fellow servant with Ward. He was1 in charge generally, under the testimony, of the whole work when Chitwood was not there.”

*121 Chitwood, Collins and Ward'all testified that while Ward had the right to call on Grice to assist in chaining the log, Grice was not obliged to ob'ey him. Ward testified that he “didn’t claim to be over Grice in any way;” that “Grice was representing Mr. Chitwood (the captain foreman) when he was not there.” Collins testified: “To a certain extent, Mr. Grice was acting foreman.”

Under the law, however, it was immaterial whether the rank or grade of Ward was superior to that of Grice, whether or not Ward was vice principal; for they were both engaged at the time in the common enterprise of removing the log from the stream, and pro hac vice, they were fellow servants, regardless of their respective grades or ranks. See authorities upon this subject quoted in the opinion of the writer in the case of Leopard v. Beaver Duck Mills, 117 S. C., 122; 108 S. E., 190, recently filed.

The suggestion that any of the instrumentalities were defective and worn cannot be relied upon, for the reason that there is no allegation of such fact in the complaint.

The testimony does not show that the master failed in any duty which he owed to the servant in the furnishing of a reasonably safe place to work or reasonably safe instrumentalities with which to work; it clearly demonstrates that whatever lack of safety existed in either was due to the want of care on the part of the intestate or negligence on the part of his fellow servants, and that if there had been any lack of safety in either the intestate was thoroughly familiar with the entire situation and the dangers, if any, and would be held to have assumed the risk of injury from their operation, particularly as to alleged defects in the machinery, the repair of which was a part of his own duties.

The judgment below should therefore be affirmed.