tance from stevedores, the grain running by gravity into the buckets; but as the work went on, and the grain was taken out, so that it slanted away from the end of the marine leg at an angle of about 45 degrees, assistance by stevedores became necessary first by hand shovels, and later. as the grain retreated further, by so-called power shovels or scrapers, which hauled the grain to the foot of the marine leg. The power shovel was operated by a steel cable attached to it and running to a drum on a shaft revolving rapidly and constantly on the outside of the elevator about 18 feet above the dock, which shaft was impelled by an electric motor inside the elevator. The drum revolved only when a clutch was engaged by friction with the drum, and the clutch operated only when a rope attached to a lever was pulled by an employee of the defendant standing on the deck of the boat, who pulled it when it was desired to draw the shovel or scraper full of grain towards the foot of the leg. It is undisputed that in order to keep the clutch in operation that operator must continue to pull on his rope; otherwise, the clutch at once becomes disengaged and the drum ceases to operate. The work of the stevedores, when the power shovel was in use, was to take hold of the handles of the shovel, pull it back from the leg, as the steel rope unwound from the drum, let it fill with grain, and then, as the rope was pulled and the clutch engaged, follow the shovel to the foot of the leg, dump it, and repeat the operation. The employee of the defendant operating the rope to the clutch could see the stevedores much of the time through the open hatch, and knew when they were ready to have the rope pulled, and under such circumstances would pull it without signal. When, however, the men took the shovel so far from the hatch as to be out of sight, they would give a signal by hollering “All right" to the rope man. At the time of the accident, Emerson and another stevedore had just got up to the leg with a full shovel and dumped it, and had taken hold of the handles and turned around, dragging the shovel back, walking on the screenings. They had gone two or three steps, when the clutch engaged, the shovel was jerked out of the hands of the stevedores, and Emerson fell and his foot was caught by the buckets on the endless belt in the leg, causing serious injuries. The owners of the grain had made separate contracts with the defendant company and with the stevedore company; the defendant company contracted to store the grain, and furnish the marine leg, shovel and power to operate them, and also the rope tender, and the stevedore company contracted to take charge of the appliances in the hold of the vessel and furnish the necessary men to operate them and get the grain to the foot of the marine leg. Both the stevedore company and Emerson had elected to come under the provisions of the Wisconsin Workmen's Compensation Act (Laws 1911, c. 50), and Emerson filed a claim for his injury under the act which was allowed and paid in due course, whereupon Emerson assigned his cause of action against the defendant to his employer, the stevedore company, which in turn assigned it to the plaintiff company which had insured the risk and paid the award. The jury returned a special verdict finding (1) that there was no want of ordinary care with regard to the condition of the machinery, (2) that there was want of ordinary care in the operation of the machinery which pulled the shovel, (3) which want of ordinary care was the proximate cause of Emerson's injury, and (4) that the damages suffered by Emerson were $1,102.10. From judgment for the plaintiff on this verdict, the defendant appeals. W. M. Steele, of Superior (Butler, Lamb, Foster & Pope and H. E. Kelly, all of Chicago, Ill., of counsel), for appellant. Luse, Powell & Luse, of Superior, for respondent. WINSLOW, C. J. (after stating the facts as above). The defendant's chief contention in the case is that the trial court had no jurisdiction for the reason that the cause of action is maritime in its nature and within the sole jurisdiction of the admiralty courts of the United States. Two lesser contentions are made, however, which will be first briefly considered. [1] It is said that the ropetender and Emerson were, as matter of law, fellow servants, and hence that there can be no recovery because the negligence found (i. e., the pulling of the rope by the ropetender at the wrong time) was the negligence of a fellow servant. The contention must fail. Emerson and the ropetender were employed and paid by different masters. True, both masters were engaged in the same enterprise, namely, the unloading of the vessel, but this is not sufficient. There must be identity of control; here the servants of neither master were under control of the other, and this is the ultimate test. 26 Cyc. 1284; 18 R. C. L. § 226, p. 762; Phillips v. C., M. & St. P. R. R. Co., 64 Wis. 475, 25 N. W. 544; Hoveland v. N. B. Works, 134 Wis. 342, 114 N. W. 795, 14 L. R. A. (N. S.) 1254; Johnson v. Motor Co., 173 Mich. 277, 139 N. W' 30, 44 L. R. A. (N. S.) 830; Wagner v. B. E. Ry. Co., 188 Mass. 437, 74 N. E. 919; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480.. [2] In his charge to the jury the trial judge applied the doctrine of res ipsa loquitur, and told the jury in substance that where both the apparatus and its operation are in the control of the defendant, and an accident happens which could not ordinarily happen except by reason of defective apparatus or negligent operation, the fact of the accident might be sufficient of itself to justify a finding of defect in the apparatus or negligence in its operation. We see no error here. It is undisputed that the defendant had control of the apparatus and its operation, and it is also undisputed that the apparatus worked abnormally, and operated when it should not operate, thereby causing Emerson's injury, Nothing more is needed to make the rule applicable to the case. Cummings v. N. F. Co., 60 Wis. 603, 18 N. W. 742, 2Q N. W. 665; Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901. Under the undisputed evidence we are unable to see how the jury could reach any other conclusion, except that the ropetender negligently pulled the rope when it should not have been pulled. We pass, now, to the question of jurisdiction. No attempt will be here made to review the decisions of the federal courts on the general subject of the jurisdiction of the District Courts of the United States over torts occurring on shipboard. The harmony between them is certainly not complete, and no good purpose would be subserved by lengthy discussion. A learned and very complete note collecting the authorities is to be found appended to the case of C. T. R. Co. v. Cleveland S. S. Co., 208 U. S. 316, 28 Sup. Ct. 414, 13 Ann. Cas. 1215. The principle's which govern the present case are not numerous, nor do we think they are seriously in doubt. [3] Admiralty jurisdiction is vested exclusively in the United States District Courts, "saving to suitors in all cases the right of a commonlaw remedy where the common law is competent to give it." Judiciary Act 1789 (Act Sept. 24, 1789, c. 20) § 8, 1 Stat. 76 (U. S. Comp. St. § 1234); Judicial Code (Act March 3, 1911, c. 231) §§ 24(3), and 256, 36 Stat. 1091, 1160 (U. S. Comp. St. §§ 991[3], 1233). [4] The work of a stevedore in loading or unloading a ship lying at the wharf is maritime service, and actionable injuries received during such work are so far maritime injuries that recovey may be had for them in the admiralty courts by libel in personam against the stevedore company which employs him. Atlantic Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. [5] Workmen's compensation laws provide remedies wholly unknown to the common law, which are incapable of enforcement by the ordinary processes of any court, and are not saved to suitors by the saving clause of the Judiciary Act above cited. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. [6] The common-law jurisdiction of the state courts over torts committed at sea is preserved by the clause cited, but remedies by proceedings in rem can only be administered in the admiralty courts. Steamboat Co. v. Chase, 16 Wall. 572, 24 Sup. Ct. 843, 48 L. Ed. 307; Sherlock v Alling, 93 U. S. 118, 28 L. Ed. 819; The Hamilton, 207 U. S. 398, 404, 28 Sup. Ct. 133, 52 L. Ed. 264; McDonald v. Mallory, 77 N. Y. 546; Thompson v. Hermann, 47 Wis. 602, 3 N. W. 579, 32 Am. Rep. 784. [7] If no remedy is sought against the vessel itself, the case is not within the exclusive jurisdiction of the federal courts but the state courts, administering common-law remedies, have concurrent jurisdiction. 1 Cyc. p. 811, subd. 2; 1 C. J. p. 1253, § 24. Full consequential damages may be recovered in such an action according to the statute of common law of the state which has jurisdiction. Steamboat Co. v. Chase, supra; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480. The case last cited is closely analogous in its facts to the case before us, and seems well-nigh conclusive on the questions involved. Even though the action be brought in the maritime court, it seems that full damages may be recovered in such a case as the one before us. Imbrovek v. Hamburg Am. S. P. Co. (D. C.) 190 Fed. 231. In case of injury to a seaman on the high seas, the measure of recovery is limited to wages, maintenance and cure (Chelentes v. Luckenback S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171; but this is an ancient rule of maritime law, applying only to seamen on a voyage. (The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760). We find no prejudicial errors in the record. Judgment affirmed. From July to December, 1919, inclusive. Abromowitz v. Hudson View Const. Co et al. (N. Y. S. C.)............. (Iowa S. C.) American Indemnity Co. v. Dinkins. (Tex. C. C. A.). American Indemnity Co. v. Zyloni et al. (Tex. C. C. A.) 538 717 .374 Arizona Copper Co., Limited, v Hammer. (U. S. S. C.) Arizona Eastern R. Co. v. Matthews (Ariz. S. C.).. Bank of Los Banos et al. v. Industrial Accident Commission of Cali- 587 Berman v. Reliance Metal Spinning & Stamping Co. et al. (N. Y. S. C.) 128 Biglan v. Industrial Insurance Commission of State of Washington. 650 California Highway Commission of Department of Engineering of State of California v. Industrial Accident Commission of State Chicago, R. I. & P. Ry. Co. v. Industrial Commission et al: (Ill. 595 Corkin v. River Raisin Paper Co. et al. (Mich. S. C.) Cousineau v. Black. (Mich S. C.) Crosby v. Thorp-Hawley Co. et al. (Mich. S. C.) Culhane v. Economical Garage Co. et al. (N. Y. S. C.). Day v. Louisiana Central Lumber Co. (La. S. C.). Doherty v. Grosse Isle Tp. (Mich. S. C.) Drummond et al v. Isbell-Porter Co. et al. (N. Y. S. C.). Duffney v. A. F. Morse Lumber Co. (R. I. S C.).... Dziengelewsky v. Turner & Blanchard, Inc. (N. Y. S. C.) Eldridge v. Endicott, Johnson & Co. et al. (N. Y. S. C.).. Employers' Liability Assur. Corporation, Ltd., In re (Mass. S. J. C.). % 569 Fidelity & Casualty Co. of New York v. Llewellyn Iron Works. 694 Folts v. Robertson et al. (N. Y. S. C.) Foster v. Industrial Insurance Commission. Freeman's Case (Mass. S. J. C.)........... Gabriel v. A. J. Smith Const. Co. et al. (Mich S. C.).. Gage v. Board of Control of Pontiac State Hospital. Gallagher v. P. M. Walton Mfg. Co. et al. (Pa. S. C.)... Garvin, Alien Property Custodian, v. Western Cooperage Co. (Ore. Granite Sand & Gravel Co. v. Willoughby et al. (Ind. A. C.).. 53 of Ramsey County. (Minn. S. C.) 262 Hall et al. v. Southern Pac. Co. et al. (Cal. D. C. A.) 12 Halsted, Joseph, Co., v. Industrial Commission et al. (Ill. S. C.). Hartford Accident & Indemnity Co. v. Industrial Accident Commis- sion of California et al. (Cal. D. C. A.). 593 Hartsock et al. v. Long et al. (Ind. A. C.) 706 Heed v. Industrial Commission et al. (Ill S. C.). 27 Heinze et al. v. Industrial Commission et al. (Ill, S. C.) 361 Helburg v. Town of Louisville et al. (Colo. S. C.) 152 Hercules Powder Co. v. Morris County Court of Common Pleas et al. (N. J. S. C.) 523 Howell, The (U. S. D. C.).. 467 Hyman Bros. Box & Label Co. et al v. Industrial Accident Commis- 343 |