GULF TRANSIT CO. v. GRANDE, 222 F. 817

MAXEY, District Judge (after stating the facts as above). It is conceded by counsel that the injuries of the appellee resulted from the negligence of the gangwayman in prematurely giving a signal to the winchman to lower the cotton. And the only question to be determined is whether the appellee and gangwayman were fellow servants, within the rule which exempts the master from liability for the negligence of one servant resulting in injury to another of the same class. They were both employed by appellant, which was, quoad the ship, an independent contractor.

They were engaged in a common employment in the same department of service, and both received orders from tlie same employer. The gangwayman had no control over the appellee; his duty being simply to signal the winchman when to hoist the cotton and lower it in the hold of the ship. The winch and other appliances were in good condition, and there is no claim that the gangwayman was an incompetent servant.

Counsel for the appellee insist that it was the duty of the appellant to exercise reasonable care in providing him with a safe place to work, and that the negligence of the gangwayman in giving the signal prematurely to the winchman rendered the place unsafe, and hence for the resulting injuries to him the appellant is liable in damages. This position of counsel is opposed by the decided weight of authority, and to it we are unable to give our assent.

That the appellee and the gangwayman were fellow servants, and that the appellant was not responsible for the negligent acts of the gangwayman in carrying on the work, clearly appears from the two cases of New England R. R. Co. v. Conroy, 175 U. S. 327, 20 Sup. Ct. 85, 44 L. Ed. 181, and Kreigh v. Westinghouse, 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984. The former case, in which the court declined to follow Railway Company v. Ross, cited below, announces a rule to guide us in determining who are fellow servants. At page 328 of 175 U. S., at page 86 of 20 Sup. Ct. (44 L.

Ed. 181), the court said: “Unless we are constrained to accept and follow the decision of this court in the case of Chicago, Milwaukee & St. Paul Railway Co. v. Ross, 112 U. S. 377 [5 Sup. Ct. 184, 28 L.

Ed. 787], we have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employe, occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to-perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end.” Referring to the duty of the master to provide his employes with a safe place to work and to his responsibility for injuries resulting from the place becoming unsafe through the negligence of laborers in the manner of conducting the work, it was said by the court in Kreigh v.

Westinghouse, 214 U. S. at pages 255, 256, 29 Sup. Ct. at page 621 (53 L. Ed. 984): “The duty of the master to use reasonable diligence in providing a safe place for the men in his employ to work in and to carry on the business of the master for which they are engaged has been so frequently applied in this court, and is now so thoroughly settled, as to require but little reference to the cases in which the doctrine has been declared. Baltimore & Potomac R. R. Co. v. Mackey, 157 U. S. 72, 87 [15 Sup. Ct. 491, 39 L. Ed. 624]; Union Pacific R. R. Co. v. O’Brien, 161 U. S. 451 [16 Sup. Ct. 618, 40 L.

Ed. 766]; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. 64 [24 Sup. Ct. 24, 48 L. Ed. 96]. The employs is not obliged to examine into the employer’s methods of transacting his business, and he may assume, in the absence of notice to the contrary, that reasonable care will be used in furnishing appliances necessary to carrying on the business. Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. 64, 68 [24 Sup. Ct. 24, 48 L. Ed. 96].

But while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty, of providing a reasonably safe appliance and place for his employes to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. Armour v.

Hahn, 111 U. S. 313 [4 Sup. Ct. 433, 28 L. Ed. 440]; Perry v. Rogers, 157 N. Y. 251 [51 N. E. 1021].” The case of Ocean Steamship Co. v. Cheeney, 86 Ga. 278, 284, 12 S. E. 351, appears to be peculiarly applicable to the case at bar. Referring to the hatch tender whose negligence resulted in injuries to one of his colaborers, it was said by the court at page 283 of 86 Ga., at page 351 of 12 S. E.: “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 eoemployé 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 from 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 eoemployé, 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 eoemployé threw, the bale down. In either case it would be the negligence of a eoemployé.

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 eoemployé. in throwing the bale down without notice.” . ' ■ > It seems useless to multiply authorities touching a question which has been definitely decided by the Supreme Court. The case of Standard Oil Company v. Brown, 218 U. S. 78, 30 Sup. Ct. 669, 54 L. Ed. 939, relied upon by the appellee, is thought not to be in point.

The facts of the Brown Case clearly distinguish it from the case before the court, and it would be a useless consumption of time to point out their differing features. Our conclusion is that the gangwayman was a fellow servant of the appellee, and hence for his negligence no recovery ran be had against the appellant. The decree should be reversed, and the cause remanded, with directions to the trial court to enter a decree dismissing the libel. So ordered.