232 Mass. 400 | Mass. | 1919
The plaintiff’s intestate was drowned while employed as mate of the defendant’s steam trawler, the Long Island. This action is to recover damages for his death.
On December 21, 1916, about five o’clock in the afternoon, the vessel left T Wharf, Boston, bound for the “ Georges,” which are fishing banks in Massachusetts waters. About six o’clock, shortly after passing Boston Light, the plaintiff’s intestate, Jerome Ford, came on deck to take charge of his watch as mate of the vessel. He came from the galley in the forecastle and walked aft on the starboard side. As he was ascending a flight of four steps leading from the deck to the pilot house, the vessel rolled and he was thrown overboard. At the time of the accident there was a fresh northwest breeze and the vessel was going before the wind; no cry was heard, no clothing was seen floating in the water, and Ford was not seen by any one from the time he fell overboard.
The negligence relied on was the absence of a guard or rail along the flight of four steps leading from the deck to the pilot house. The intestate “had been connected with this particular boat for about two months,” as its mate, and during that time the stairs remained in the same condition, — with no railing or guard upon them. The employer was under no duty to the employee to change the obvious conditions of the vessel where the intestate was to perform his work, and the defendant w;as not negligent in continuing the arrangements as they were when the employment began. Cross v. Boston & Maine Railroad, 223 Mass. 144, 147. Wood v. Danas, 230 Mass. 587, and cases cited.
The plaintiff also contends that the boat which was lowered to pick up .the intestate was lashed to the deck instead of being suspended from davits and in order to launch it the lashings had to be cut; that McCue, who manned it, had only one oar and was obliged to scull, instead of rowing as he might have done if he had had two oars. Even if it be assumed that upon these facts it could have been found the defendant was negligent, there is nothing to show they in any way contributed to Ford’s death. He
As no evidence of the defendant’s negligence is shown, the plaintiff cannot recover in this action; it therefore becomes unnecessary to consider the question whether sufficient notice was given the defendant or questions as to the evidence argued by the plaintiff.
Exceptions overruled.