93 N.Y.S. 273 | N.Y. App. Div. | 1905
The complaint alleges several groutids of negligence on the part* of the defendant, but the case as finally submitted to the jury resolved itself into a single question of fact, and that was whether the defendant was negligent in not providing rules and regulations for the operation of a winch under the. circumstances under which the accident complained of occurred,, the question ' being raised by defendant’s exception.to the charge. : The facts, which are not seriously in dispute^ are as follows:
The plaintiff was employed in a gang of eight men as a longshoreman and was engaged in stowing away-a cargo in the Eastern. Prinee, a steamship operated by the defendant. He Was "down in-the hold of the vessel. ■ The Work under way was transshipping from a barge to the hold of the. vessel a quantity of flour in bags. The-plaintiff,, with a helper, was stationed upon a temporary platform erected under one of - the hatchways, and it Was the duty of these men when a draft of ten or twelve bags of flour was. lowered to them to take it from the sling and to place it where it could
While it is probably true that the necessity for rules is for the
If the evidence had shown that a similar accident had ever occurred where it would have been likely to have attracted the attention of the defendant; if it had been established that the plaintiff was called upon to occupy a place where these drafts hung over him, or if it had appeared that any other employer had ever discovered the necessity or advisability of such a rule as the learned court suggested, there might be some question for the jury to pass upon, but with no other proof than that of the mere fact of this particular accident, which may have been due to the particular circnmstahces of the moment, and which might not occur again in a lifetime, and of the fact that the defendant had made no such rule, before them, it was error to submit the question to the jury. The fact that such a rule would have prevented the accident here under consideration is not the test of negligence; the question is, did the defendant have reason to believe, or was it reasonable, in the exercise of reasonable care, to anticipate that this or a similar accident would occur if it failed to make a rule or regulation governing
The judgment and order appealed from should be. reversed and a, new trial granted, costs to abide the event.
• Bartlett, Rich and Miller, JJ., concurred; Hirsohberg, P. J., concurred in result.
■Judgment and order reversed and new trial granted,■ costs to abide the event. -