Miller v. Moran Bros.
Miller v. Moran Bros.
Opinion of the Court
Appellant was employed as a carpenter by respondent, a corporation, engaged in building tbe battleship “Nebraska” for the United States government. Respondent had in its employ over seven hundred men, some working by the hour, some by the day, and some by contract, on certain portions of the work, for fixed amounts. Appellant’s duties required him to go from place to place about said ship, putting in and changing stanchions or shores, used to support the vessel in position. One Kelly had a contract from respondent to place, upon the sides of the ship, certain steel plates. He was to be paid a gross sum for doing said work. He was given full power to hire and discharge men, and had the control and supervision of them while engaged in the work, they all being subject, however, to the general rules of the shipyard. The work was required to be satisfactory to respondent and the United States government, both of whom had superintendents about the premises. The appliances used by Kelly were furnished by respondent, although the written contract between them—■ which appears to have been the only contract governing them—is silent as to who should furnish the tools and appliances.
On the 16th day of November, 1903, while appellant was working in the vicinity of some of Kelly’s workmen, he was seriously injured by the falling of a steel plate, weighing about two thousand pounds. In raising this plate, a chain and tackle were fastened to an iron bar, placed lengthwise across a manhole, extending about nine inches on each side of said opening, which was eighteen inches in diameter. By chains extending from the tackle to the plate, the latter was raised from the floor to the side of the ship, where said plate was to be adjusted. While the plate was suspended in the air, appellant helped shove and “steady” it awhile, and then proceeded to do something about his own work under said suspended plate.
In attempting to get the plate into proper position on
It appears by the evidence that an appliance, known as a grappling hook or as a clamp, could have been used instead of the iron bar; and, if properly adjusted, would have avoided this accident. Two of the workmen went to the tool house to get such an appliance but were told by the keeper in charge thereof that there was no such appliance there at that time. It appears by the evidence that there were probably such appliances about the yard. No request for such was made of any superintendent, foreman, or officer of respondent. The workmen selected the iron bar from certain of respondent’s material found near by.
Appellant instituted this action against respondent to recover damages occasioned by reason of the injuries sustained as aforesaid. At the close of his case, a motion for nonsuit was sustained by the trial court. From the judgment of dismissal, this appeal is taken. It is claimed by appellant that it was respondent’s duty to furnish a reasonably safe appliance to Kelly for raising these plates, and that, inasmuch as it did not do so; it must respond in damages to appellant for the injuries he sustained.
In the first place, the only contract shown to exist between respondent and Kelly does not place upon respondent any obligation to furnish any tools or appliances. In the next place, it does not appear that respondent, or any of its officers, superintendents, or foremen refused to furnish necessary and safe appliances. The unsafe appliance was not furnished by respondent. There is no evidence that respondent, or any of its agents, knew anything about Kelly’s men having taken or used the iron bar in question. These
Even conceding it to have been the duty of respondent to furnish Kelly with appliances—and this is not shown by the evidence—this duty would be fulfilled by delivering suitable appliances to Kelly upon his request therefor. If there were such appliances provided in the yard where Kelly could secure them upon demand, it was a sufficient compliance with the duty. Steeples v. Panel etc. Box Co., 33 Wash. 359, 74 Pac. 475. It appears that respondent, by some official, gave Kelly’s workmen an order on the keeper of the tool house for one of these grappling hooks. None was there at the time. Instead of going to some foreman and asking as to where such an appliance could be found, these men went to a pile of iron near by, and selected the bar which was used. It was not the duty of respondent to keep watch of Kelly and deliver his appliances at the place of use.
As an independent contractor, Kelly owed his servants the duty of furnishing reasonably safe appliances. Toward others working in his vicinity, he owed the duty of ordinary care. Respondent had the right to presume that Kelly would
A breach of respondent’s duty to furnish appellant a safe place to work is suggested. That the master is under obligations to give the servant a reasonably safe place to work is, of course, a well established principle of law. But where the servant is in as good a position as .the master to ascertain and understand the situation, and does equally well know and appreciate the existing conditions, he cannot he heard to complain from injuries sustained by working therein. Wilson v. Northern Pac. R. Co., 31 Wash. 67, 71 Pac. 713; Anderson v. Inland Tel. etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410; Tham v. Steeb Shipping Co., ante, p. 272, 81 Pac. 711.
In the case of Wilson v. Northern Pac. R. Co., supra, this court, speaking by Mount, J., said:
“If defendants are liable at all, they are liable because of some neglect of duty owing from defendants to plaintiff. . . . They were not obliged to guaranty the safety of the place, but they were in duty bound to make a reasonable inspection. . . . His [the servant’s] inspection was the inspection, of a reasonably careful man. The foreman, no doubt, also inspected the ground in the same way for the same purpose, and saw the same as the plaintiff saw, and came to the same conclusion. . . . When the danger is not known, and not suspected, and where there*637 are no circumstances which, would cause a reasonably careful man to investigate and ascertain the danger, the law will not impute knowledge of danger where the knowledge is not shown in fact. When reasonably careful men conduct their business in a reasonably careful manner, there is no negligence.”
In Anderson v. Inland Tel. etc. Co., supra, this court speaking through Dunbar, J., said: . . if the employee does know of the defect, or has equal means oí knowing with the employer, then, certainly, it is his unquestioned duty to investigate before proceeding;” and the following quotations were made with approval: “Where the danger is alike open to the observation of all, both master and servant are upon an equality, and the master is not liable for an injury resulting from the dangers of the business,”—taken from Griffin v. Ohio etc. R. Co., 124 Ind. 326, 24 N. E. 888. “A master is not liable for injuries to his servant while using machinery in the employment, if the servant has the same knowledge of its defects, or the danger incident to its use, as the master, or if in the exercise of due care, he ought to have such knowledge. . . .,”—quoted from Wood, Master & Servant, § 366. “Knowledge on the part of the employer, and ignorance on the part of the employee, are of the essence of the action . . .,”—quoted from Beach, Contributory Negligence, § 346.
In the case of Tham v. Steeb Shipping Co., supra, this court upheld an instruction of the trial court given in the following language:
“If you find from the evidence that the danger was alike open and obvious to the plaintiff and to- the defendant, both the plaintiff and the defendant are upon an equality, and the master is not liable for an injury resulting from the dangers incident to the employment.”
In the case before us, there was no occasion for respondent’s supposing that Kelly would be using the iron bar mentioned. Respondent was concerned with the results of
It is urged by appellant that he did not know that Nelly was an independent contractor, and that he had a right to suppose that Nelly’s men were servants of respondent, and that it was respondent’s duty to furnish them with safe appliances. We are shown no facts or law making it the duty of respondent to inform appellant that Nelly was such contractor. None such occur to us. Neither has our attention been called to any authority giving a servant a right of action for a breach of duty on the part of the master toward an independent contractor and his men, said servant not working for, or under the direction of, said contractor.
Perceiving no error in the ruling of the trial court, the judgment is affirmed.
Reference
- Full Case Name
- William Miller v. Moran Bros. Company
- Cited By
- 17 cases
- Status
- Published
- Syllabus
- Master and Servant—Servant Injured by Negligence oe Independent Contractor—Obligation to Furnish Independent Contractor with Appliances—Selection oe Improper Appliance by Servants oe Independent Contractor. A master is not liable to. its servant, injured by the negligence of employees of an independent subcontractor on part of the work in making use of unsafe appliances, where it appears that the agreement with the independent contractor did not require the master to furnish the appliances, and that suitable appliances were on the premises and no request was made therefor upon any of the master’s officers or foremen, but the improper appliances used were selected by employees of the independent contractor without the knowledge of the master. Same—Obligation to Independent Contractor. The duty of a master, who delegates part of the work to an independent contractor, to furnish him with suitable appliances would not render the master liable to his own employees for negligence of the independent contractor in respect to appliances used, although the master retained and exercised general supervision over the work, when the choice of methods was left entirely to the independent contractor. Same. There is no violation of a master’s duty to furnish an independent contractor with suitable appliances for carrying on the work, by reason of the fact that none were at the tool house when sent for, where there was no request therefor made upon any of the master’s officers or foremen. Same. The fact that a master had been furnishing appliances to an independent contractor would not render the master liable to its own employee for the negligence of the independent contractor in furnishing an unsafe device. Same—Duty to Furnish Safe Place—Assumption oe Risk— Servant Working Under Heavy Steel Plate Being Put in Place by Independent Contractor—Use oe Unsafe Appliance by Contractor—Knowledge of Servant—Constantly Changing Dangers in Construction oe Ship. A carpenter employed by the defendant, a corporation engaged in building a battleship, assumes the risk of constantly changing dangers in the progress of the work, and cannot recover for injuries sustained on the theory that the defendant failed to provide a safe place, where it appears that plaintiff, whose work was constantly shifting from place to place, was working at the time of the accident directly under a heavy steel plate, which was being put in place by employees of an independent contractor, that plaintiff, after helping steady the plate, resumed his work beneath the same, and that the danger was open and as apparent and well known to the plaintiff as to the defendant, the place being rendered unsafe for the moment only, and by reason of the negligence of the employees of an independent contractor, which fact was unknown to the defendant. Same—Contributory Negligence oe Servant in Working Under Suspended Steel Plate in Construction of Ship. An employee, a carpenter, engaged on work about the construction of a ship, is guilty of contributory negligence, where he, with full knowledge of the danger, voluntarily assumes a position underneath a steel plate Weighing two thousand pounds, momentarily suspended while being put in place; no emergency or order in justification being shown. Same—Knowledge oe Relation. An employee, injured thfough the negligence of employees of an independent contractor, cannot sustain an action against his employer by showing that he was not aware of the relation between the defendant and the independent contractor.