Barney Dumping Boat Co. v. Clark

| 2d Cir. | Dec 6, 1901

PER CURIAM.

The first proposition advanced by the defendant is that there was no evidence in the case tending to show any negligence on the part of the defendant. It is, no doubt, true that the master is not bound to provide a safe place for his employés to work in, but only a reasonably safe place. It may often not be prac- ' ticable to provide a safe place, the nature of the work precluding it. All that is required is that the master should act in that regard as a reasonably prudent man would do, and what is reasonable prudence depends always on the facts of each case. The jury in the case at bar, however, were fairly entitled to find that the stern deck was a place not even reasonably safe. That so much of that deck as was swept over by the tiller was a highly-dangerous place is manifest, and apparently not disputed. That it was so extremely difficult as to be well-nigh impossible for two men to work at the same time lifting a hawser off the starboard bitt, without one of them standing within range of the tiller, is plain from the model and the testimony. There was evidence in the case that the block might have been moved inches without making any appreciable difference in the steering capacity of the boat. This would reduce the area of danger. It does not appear that it was not entirely practicable to bridge over the area traversed by the tiller for a sufficient space near the bitt to give a safe platform to stand on, nor that it would not have been an easy matter to recess the side of the' deck house near the hatchway for the few inches necessary . to make that locality spacious enough to work in. . It makes no difference, of course, that the place was not even reasonably safe, if the danger was obvious, as it was here, unless in some way the plaintiff is relieved from the operation of the rule as to assumption of the risk; and the important question in the case is whether he is thus relieved, taking his testimony to be true, as we must on this appeal. Plaintiff testified that on the first pay day after he was employed he told West, the superintendent, that he “wanted the block taken away and the sheaves put on the bitt,” and that West said he would attend to it in a few days, when the boat was hauled out, and that on two other occasions, the last of which was three or four days before the accident, he spoke to the superintendent (West) on the same subject, and it “was about the same way,—that he was going to have her fixed and hauled out, and everything would be satisfactory.” This, with all the other evidence, was submitted to the jury under a full and careful charge, which is not here challenged; and their verdict found that plaintiff had received assurances which would induce a reasonably prudent man to keep along in the employment notwithstanding the obvious risk. It is pointed out in argument that to make the change suggested by plaintiff would so reduce the arc through which the tiller swung as to interfere with the steering capacity of the boat; also that the bitts are liable to pull out, and that to fasten the sheaves of the tiller chains on them would be most unworkmanlike construction. These considerations, however, go only to the credibility of plaintiff’s testimony,—as to the probability or improbability of any such promise being made to him as he asserted that he relied on. It is manifest from an inspection of the model that such a change would materially increase the safe deck area available for a man working about the bitt. Therefore, if assurance was given that such change would be made, the jury might fairly find that he was not unreasonably imprudent in remaining in the employment.

It is the general rule that a servant, who has a right to abandon a service because it is dangerous, and who yet refrains from doing so in consequence of assurances that the danger shall be removed, will not be held to have assumed the risks of remaining for a reasonable length of time after such assurances. Defendant contends, however, that this applies only to cases of temporary defects,—to repairs as distinguished from new construction. It is difficult to understand any logical reason for such distinction. It may readily be conceived that an employer who would quickly respond to a request for repairs would treat as preposterous any suggestion that he should make structural changes in his machinery or buildings, and would probably tell his employe that, if he did not like to work at such a machine, he might go elsewhere and look for a better one. But if, on the contrary, the master chooses to make the promise, and does give assurance that he will make structural changes which will eliminate risk to life and limb, we cannot see why the employé may not rely on the one promise as much as on the other. We are referred to no authority which sustains this suggested distinction as á necessary antecedent to the conclusion arrived at. In Clarke v. Holmes, 7 Hurl. & N. 937, machinery became unfenced after the service was entered on. In Ladd v. Railroad Co., 119 Mass. 412" court="Mass." date_filed="1876-01-28" href="https://app.midpage.ai/document/ladd-v-new-bedford-railroad-6418391?utm_source=webapp" opinion_id="6418391">119 Mass. 412, 20 Am. Rep. 331, th.ere was, no .promise to supply “check-chains,”.-rior even any request to do so. In Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; the. court expressly holds that there -was no promise to make the “change or improvement” suggested. . - -

It is further contended that there -was no authority on the part of West to make the changes promised. The court charged the jury that, “although he did-not actually have the authority, if he assumed to have it, and the plaintiff reasonably reposed in the. assumption, so that he could reasonably think that he had the authority,” his promise,. if made, would excuse the plaintiff for remaining a reasonable time in reliance upon it. We concur in the proposition thus charged, and - his position as superintendent was sufficient to warrant the jury in deciding this branch of the case in favor of the plaintiff.

All question of contributory negligence was fairly for the jury. It was suggested that plaintiff might have put the wheel in a becket before he came out on the deck; but there was proof tending to show that the becket rope was not strong enough to hold it, and also that, if it were, becketing, under the circumstances, would have imperiled the rudder. So, too, it was perhaps possible for the plaintiff and the mate, by exercising great care, so to place themselves that they might have succeeded in both working at the hawser without standing' in-the dangerous area; but it was night, the call to shift the hawser was sudden, and the degree of care exercised under all the circumstances was a question for the jury.

The judgment of the circuit court is affirmed.