| S.D.N.Y. | May 15, 1887
On the morning of June 8, 1886, the canal-boat Lizzie Eugene was brought.from Hoboken to the pier at West Twenty-fourth street, North river, to take coal front the steamer Martello, which lay along-side the wharf. Outside of the steamer lay Scow No. 9, which was also engaged in the same work of discharging the Martello for the same company. The canal-boat bad brought a large skid from Hobo-ken for the use of the scow. The captain of the canal-boat, on arrival, having moored along-side No. 9, started to cross the latter boat to report to the stevedore in reference to the skid. In crossing the scow, he fell down into the hold, and was so badly injured that he died within a few hours. This action is brought by the administratrix to recover for the negligence of the scow, under the law of the state, which gives an action for damages for death caused by negligence, not exceeding the sum of 55,000.
The scow was what is known as an “open-deck boat,” having a narrow deck passage-way along each «ido, and in front, and at the stem; while the center of the boat was divided into four compartments of hatches, which were supplied with large hatch covers, forming a roof with two sloping sidos. The deceased, instead of going around by the deck passage to cross to the Martello, after reaching the deck, clambered about two and one-half feet upon the hatches, which were securely fast
There is considerable difference in the testimony as to the precise spot where he fell;'the'respondents claiming that it was at a point where the hatch covers had been taken off and piled several upon each other, so that the deceased must have stepped upon the pile, which slipped, and caused his fall. The son, however, who saw the fall, testified to the contrary.
I do not think it necessary to determine this question; for, upon the other branch of the case, I feel bound to hold that there was no such obligation or duty owed by the scow to persons crossing the hatches, in the way the deceased attempted to cross, as to constitute legal negligence towards him, even if the hatch covers were not in a secure position; and consequently that no action under the statute has accrued. In case of vessels moored of necessity along-side of each other, in this harbor, there is, I think, an implied license to those having business on the docks to cross and re-cross the vessels that lie between. But this license is not accompanied by any duty to keep all parts of the boat crossed over secure against possible accident to strangers who may hurry across at any time, and in any direction, without notice or inquiry. Belford v. Canada Shipp. Co., 35 Hun, 347. The deck furnished a safe and easy passage in this case. It was the natural and proper passage. The roof formed by the hatch covers was not designed as a passage-way. There was nothing reasonably calculated to lead persons wishing to cross the boat to suppose that the hatches were designed for any such purpose, and there was nothing that could be construed as an invitation or inducement to strangers to climb up two and one-half feet, and pass over them, instead of going round by the deck.
The general principles applicable to accidents to licensees are fully discussed by Bigelow, C. J., in the case of Sweeny v. Old Colony R. Co., 10 Allen, 368, 372, and they do not sustain a recovery under circumstances like the present. There was nothing here in the nature of a trap or pitfall in the passage which persons going to and from the dock would naturally be expected to take. See Bolch v. Smith, 7 Hurl. & N. 736, 744. The evidence shows, indeed, that persons in haste might, and no doubt often did, run across the hatches, but I must regard this as done at their own risk. It would be an unwarrantable extension of an implied duty to hold the boat bound to make all possible ways of crossing by strangers safe, and I cannot regard the hatch covers as constituting such a natural or usual passage-way as entitled strangers, upon a mere license of this kind, to have them maintained safely for their benefit, at the owner’s peril. I feel constrained, therefore, to dismiss the libel; but it must be without costs.