76 N.J.L. 618 | N.J. | 1909
This action was brought to recover damages for the death of plaintiff’s intestate, John Kennedy, which occurred while he was in the employ of the defendant company as a coal shoveler. The work in which he was engaged was trimming coal on the defendant’s steamer “Staatendam,” on what is known as the “between decks,” while the steamer was at the Hoboken docks. In order to get to this part of the vessel it was necessary to climb down a ladder from the main, or upper, deck, to the next deck below known as the spar deck, and thence down another ladder to the “between decks” where the coal bunkers were located. Below the “between decks” was the hold. There were two hatchways opening into the hold from the “between decks.” These hatchways were opposite one another, with a space of about two feet between them. The ladder leading from the “between decks” to the spar deck was located about three or four feet from the forward starboard corner of the starboard hatchway. Directly over the hatchways in the “between decks” was a large hatchway in the spar deck, and directly above this last-mentioned hatchway was another hatchway of the same size on the main, or upper, deck. In front of the coal bunkers where Kennedy, together with other employes, was working, was a movable bulkhead separating them from the rest of the “between decks.” This bulkhead was about twenty feet - distant from the hatchways on the “between decks.” There was an opening in it some two or three feet square through which the coal trimmers passed into the bunkers. The “between decks” received what light it had through the hatchways which were in the main and spar decks, and which were left uncovered while the vessel was being loaded or unloaded, the sun being depended upon to furnish the light through the day, and a cluster of electric lamps, which was suspended over the middle of the hatchway upon the main deck, furnishing the light at night. The bulkhead which separated the coal bunkers from the rest of the “between decks” shut off from the bunkers the light which came through these hatchways, and the coal trimmers were
On the facts recited the trial court left it to the jury to say whether Kennedy’s death occurred while coming away from the coal bunkers with his companions, and, if so, whether it was due to his accidentally falling into the hold through inability to see his way for want of sufficient light on the “between decks,” and charged them that, in case they so found, they should determine whether, in not providing more light at that place and time, the defendant had failed in the duty to use reasonable care to see that the way furnished to Ken
The principal ground upon which the judgment is attacked before us is that the trial court erred in permitting the case to go to the jury at all; that the motion to nonsuit the plaintiff, made at the close of her case, should have been granted, and further, that the motion to direct a verdict for the defendant, made when all the proofs were in, was improperly refused. These motions were, each of them, based on three grounds—first, that the danger of falling through the open hatchway into the hold while passing to and from his work, was a risk assumed by Kennedy; second, that the proofs conclusively showed that the deceased contributed to the accident by his own negligence; and third, that there was no proof of negligence on the part of the defendant.
The facts in this case will not, in our judgment, support á finding that the defendant failed in its duty to provide sufficient light to enable the deceased to safely make his way from the coal bunkers to the main deck. The “between decks,” as we have already said, was usually lighted by leaving the covers off the main and spar deck hatchways, thus permitting the sunlight to penetrate to that point during the day, and the light from the cluster of electric lamps which were kept burning at night over the main hatchway to illuminate this space after dark. That this method of lighting that part of the vessel was sufficient to enable employes who were engaged at work in the coal bunkers to go to and from their work in safety, is not controverted on the part of the plaintiff ; but it is contended that, as the proofs showed that on the occasion when the plaintiff’s decedent came to his death, the usual conditions did not exist, that the main hatchway had been partly covered, and that the light which would otherwise have shone down upon the “between decks” was thereby, to a considerable extent, excluded; the defendant was charge
But even if the proofs had been sufficient to justify the conclusion that the partial covering of the upper hatchway was the act of the defendant company and not that of a fellow-servant of the deceased, done without authority from
The motion to direct a nonsuit and also the motion to direct a verdict for lack of proof of negligence on the part of the defendant, should, each of them, have prevailed.
The contention made by the defendant that the deceased came to his death through his own negligence is also, we think, well founded on the proofs. If, when he fell into the open hatchway, the “between decks” was sufficiently lighted for him to have seen and avoided it, it seems too plain for argument that his fall must have been due to his carelessness in not observing and keeping clear of the hatchway; for his work in this same place on other occasions when the vessel was in port must have made him familiar with its location
The judgment under review will be reversed.
For affirmance—Hone.
For reversal—-Ti-ie Garra? Justice, Garrison, Swatze, Reed, Trenohard, Bergen, Yooehees, Mintubn, Bogeet, Yredenburgh, Green, Dill, J. J. 12.