116 N.Y.S. 383 | N.Y. App. Div. | 1909
The plaintiff was of á gang of men employed by the defendant in unloading the defendant’s steamship of a cargo of sugar in bags. The plaintiff’s duties were to sew up any of the: bags that were ripped, and also to go between decks after the bags were out of a compartment and sweep up and bag any loose sugar from the bags. He went down to a compartment which had just been emptied by his fellow workers and as he went about sweeping up stepped into an open coa,l hole and was hurt. There was a coal hole in the deck above, namely, the top deck, and immediately over the one he fell into. The cover was on the top one, but the cover of the one he fell into lay to one side of it. These coal holes were for the purpose of letting coal down to the bunkers. They were not used in discharging the cargó. The men engaged in that work had nothing to do with them, and there is no evidence that they removed the cover from its socket or coping. They had no occasion for. doing so. The evidence showed, that the compartment1 where the' plaintiff was hurt was quite dark. The men worked there without lights, but it was an obscure place. It was not light enough to read. The negligence alleged was the uncovered coal hole, and insufficient light to see it. The case was unquestionably made out for the jury. But the defendant claims that the learned trial judge erred in refusing to charge that if the cover “ was taken and left off the hole by the neglect of the co-employees of the plaintiff, the verdict must be for the defendant ”. There was no evidence to justify such a finding.'-. Oil the contrary, there was evidence tending to show that on the outward voyage the hole was always choked with coal, the bunkers being filled, and extra coal being stored on the freight deck, i. e., in the.said compartment.
The judgment should be affirmed.
Present — Woodward, Jenks, Gaynor, Burr and Rich, JJ.
Judgment and orders unanimously affirmed oh reárgument, with costs.