
    LUTCHER & MOORE LUMBER CO. v. SMITH et al.
    (No. 6853.) 
    
    (Court of Civil Appeals of Texas. Galveston.
    May 4, 1915.)
    Master and Servant <&wkey;170 — Fellow Servants — Competency — Master’s Dtjty and Liability.
    Where a master’s foreman or vice principal employed as plaintiff’s fellow servant a winch-man incompetent for that position, as known to the foreman, and plaintiff, in the course of loading lumber on a vessel, was injured as a result of the winchman’s negligence while himself in the exercise of due care, the master was liable, since a master owes to a servant the duty of exercising ordinary care to employ reasonably competent fellow servants, which duty is nondelegable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 830; Dec. Dig. &wkey;> 170.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Action by Lee Smith and another against the Lutcher & Moore Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Holland & Holland, of Orange, for appellant. Jas. A. Harrison, of Beaumont, and Bisland, Adams & Bruce, of Orange, for ap-pellees.
    
      
       Rehearing denied June 10, 1915.
    
   McMEANS, J.

Lee Smith, claiming to have received personal injuries, while a minor, through the negligence of the Lutcher & Moore Lumber Company, a corporation, while in the service of the corporation, brought this suit to recover damages therefor. His father, John F. Smith, also brought suit against the corporation for the loss of the services of his son during his minority, on account of said injuries. These suits were consolidated in the court below, and on a trial before a jury a verdict and judgment was rendered for each of the plaintiffs, that in favor of Lee Smith being for $5,355, .and that in favor of John F. Smith being for $416. Ftom this judgment the defendant has appealed.

The Lutcher & Moore Lumber Company was engaged in the manufacture and sale of lumber, and had many persons in its employment. On February 22, 1910, for the purpose of getting its lumber to market, it chartered the steamship Nicarauga for three consecutive voyages, it being understood that the contract might be fulfilled by the substitution of any first-class steamer. in place of the Nicarauga. It was further agreed and contracted that the Lutcher & Moore Lumber Company should have the cargo in readiness upon the arrival in port of the steamship and should load the same at the rate of 100,000 feet per day, or as fast as the steamer could take the lumber at Orange (where the lumber company’s plant was located), for that portion of the cargo to be loaded there, for which the steamship would pay to the lumber company, for loading, 70 cents per thousand superficial feet. The lumber company agreed to furnish a full cargo of 350,000 feet for each trip, of which about 200,000 feet was to be taken on at Orange, and the balance to be barged by the lumber company to Sabine, and there delivered alongside the vessel when she was ready to take same on. On October 18, 1910, the steamship Nicarauga being otherwise engaged, the steamship Disa was substituted for it, and was docked at Orange to be loaded in part by the lumber company under the agreement; and, there being no regular stevedore at Orange, the lumber company directed one of its employés, Joe Goodyear, who had had some experience in loading ships, to take charge of the loading and to obtain for that purpose such hands as might be necessary, and conferred upon him the authority to employ and discharge such hands, to assign them their respective duties, and direct them in the performance thereof. Among the other hands employed by Goodyear was the plaintiff Lee Smith, who was then a minor, but who attained his majority before the suit was tried. He was employed by Goodyear without the consent of his father, John F. Smith.

The manner of loading the steamer was this: The lumber was run alongside the ship on a tram or dollyway, and a chain or sling would be placed around three or four pieces at a time, and then hoisted by means of a wire cable suspended from the end of the arm of the derrick crane on the ship, and then the crane was swung around until the lumber came over an open hatch, and it was then lowered into the hold, where it would be properly placed and stacked by employés wdrking below. The wire cable was controlled by a winch operated by steam, located on the deck of the ship, and the winch was tended by an employé, known as the “winchman” who, by proper manipulation of the machinery applied the steam and directed the movement of the derrick or crane. The tram or dollyway was higher than the deck of the ship, and when the lumber was hoisted by the cable, its progress toward the hatchway was immediate and rapid. The duty assigned to Lee Smith was placing the chain or sling around the lumber to be hoisted. These duties were to be performed entirely on the shore, and at no time required his presence on the ship. However, the lumber company had placed drinking water on the ship for all of its employés engaged in the loading, and Lee Smith and others had free access thereto, and would go upon the ship for water whenever they so desired. Sometimes in the course of loading, lumber would be loaded through the hatchway faster than those' working in the hold could move it out of the way and stack it, and on such occasions further operation of the cable and crane would be suspended until the hatchway could be cleared. On one of these occasions Lee .Smith, taking advantage of the lull, went on the ship for a drink of water, passing by the open hatch in going to where the water was kept and, after getting a drink, started to return the way he had come, and when he was near the hatchway he heard some one call out from below to know the time of day, whereupon he stepped to. the side of the hatchway and informed the inquirer that it was three minutes to 12. To do this he placed himself directly in the path that the lumber would follow in passing from the tram to the hatchway. The foreman, Goodyear, was standing at the hatchway at the time Lee Smith approached it to answer the question of the man below, and Smith, as he walked up, laid his hand on Goodyear’s arm, and just as he answered the inquiry the winchman, although seeing the position occupied by Smith and Goodyear, suddenly applied the steam to the winch, which immediately hoisted the sling load of lumber attached to the cable, causing it to swing with great rapidity to the hatchway, striking Smith before he could get out of its way, knocking him through the hatchway into the hold, and inflicting damages to his person to the extent and in the amount found by the verdict of the jury. Smith was not expecting the sling load to be raised at the time it was, for the reason that the hatchway was blocked with lumber already lowered through it, nor was he warned of this movement in time to remove himself to a place of safety before being struck.

The proper operation of a winch requires both skill and experience. On the morning Smith was injured Goodyear had employed one Antone Dyson to operate the winch in question. Dyson had never before operated a winch, and was unskilled and inexperienced in such work, and this was known to Goodyear at! the time he employed him. Some of the employés, other than Smith, protested to Goodyear about giving Dyson this employment, telling him that Dyson was green and inexperienced and was likely to hurt somebody, notwithstanding which Goodyear continued him in the work and refused to remove him.

Among other acts of negligence alleged by plaintiff in his petition as a basis for a recovery, it is substantially charged that it was through the negligence of Dyson in operating the winch that plaintiff was injured, that Dyson was incompetent and his ineompetency known to defendant, and that defendant was negligent in employing him, and that such negligence was the proximate cause of the plaintiff’s injury.

The court submitted the ease to the jury upon special issues, there being 34 special issues submitted, notwithstanding which we still think the judgment should be affirmed. The jury in answer to certain of these issues found, in substance, that Goodyear was the vice principal of the defendant; that he employed Dyson as a winchman; that Dyson was incompetent for that position, and that this was known to Goodyear; that plaintiff was injured as the result of Dyson’s negligence ; and that he ■ himself was free from negligence contributing to his injury. All these findings were warranted by the evidence. It is too well settled to require citation of authority that the master owes to the servant the duty of exercising ordinary.care to employ reasonably competent fellow servants, and that this duty is nondelegable; and that when the master fails in this duty,, and as a result thereof the servant without fault on his part, is injured by the negligence of the incompetent fellow servant, the master-is liable.

Appellant has presented in his brief 45 assignments of error, many of which assail the form in which the special issues were submitted by the court, and many others are based upon the refusal of the court to submit the issues in the form requested by it. Many of the objections to the charge are hypercritical, and a great many of them contain objections to the submission of issues that were wholly immaterial. We have carefully examined all of them, however, and are-of the opinion that reversible error is pointed out in none of them. The case as made by the plaintiffs’ pleadings referred to is supported by the material facts proved, and the verdict is not questioned as being excessive-either as to the amount awarded to Lee-Smith or his father.

The judgment of the court below is affirmed.

Affirmed. 
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