Korander v. Penn Bridge Co.

SHAW, J.

Action to recover damages for personal injuries alleged to have been sustained as a result of defendant’s negligence.

At the close of plaintiff’s evidence, defendant moved for a nonsuit, which motion the court granted. Judgment went accordingly, from which plaintiff prosecutes this appeal.

The complaint contains two counts, the cause of action in one of which (and the only one necessary to here consider) is based upon the alleged negligence of an engineer engaged in operating a steam hoisting engine supplying motive power in operating a pile-driver upon which plaintiff was employed. The evidence disclosed by the record clearly tends to show negligence on the part of the engineer; indeed, such fact is not controverted by respondent. The question, then, presented is whether or not this negligence of the engineer can be imputed to the defendant, his employer. By section 1970, Civil Code, it is provided that an employer shall be required to indemnify his employee for losses suffered by the latter

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through injuries resulting “from the wrongful act, neglect or default of a coemployee . . . employed upon a machine, . . . or other appliance than that upon which the employee is injured is employed.” In granting defendant’s motion for nonsuit the learned trial judge held that both plaintiff and the engineer whose negligence caused the injury to plaintiff were fellow-servants employed upon the same machine or appliance, and hence, under said provision of the statute, plaintiff was not entitled to recover. In thus ruling we think the court erred.

Briefly stated, the facts are as follows: Plaintiff was an employee of defendant, who was engaged in operating a pile-driver mounted upon the end of a lighter, anchored or moored in the bay of San Diego next to and adjoining a wharf where the piles were being driven. This pile-driver consisted of a mass of iron, termed a hammer, weighing upward of a ton, and was drawn upward between two timbers, termed guides, the purpose of which, in addition to supporting the hammer, was to control or guide it in its downward course when permitted to fall upon the pile as it was driven into the ground underneath the surface of the water. For the purpose of raising this hammer, a rope was fastened thereto, and, passing over a pulley at the top of the guides or scaffold, was attached to a drum connected with a portable steam engine, placed upon the lighter some thirty feet distant from the pile-driver, and which by causing the drum to revolve raised the hammer to the desired distance above the pile, when, by the action of the engineer in removing the friction, the hammer was permitted to drop upon the timber constituting the pile. Plaintiff was employed as a loftman, his duty, among other things, requiring him to occupy a position on the scaffold near the top of the pile, see that it was kept in position while being driven, and at the proper time “ring” it, that is, place an iron ring somewhat smaller in circumference than the head of the pile, which upon being driven down by a drop of the hammer, encircled the head and prevented the force and weight of the hammer in falling from splitting and otherwise injuring the timber. While thus employed in “ringing” a pile, and using his left hand in holding the ring on top of the pile, he stooped down to get a board used as a lever with which to force the leaning pile into a perpen