Liverani v. John T. Clark & Son

191 A.D. 337 | N.Y. App. Div. | 1920

Putnam, J.:

Before hooking on to this ringbolt, the foreman stevedore saw in its appearance something that started inquiry as to its strength and sufficiency. No question was made as to its size. Hence the inference that the repeated inquiries were prompted by its rusted condition. Such a blackened and corroded state of the surrounding deck points to impairment of the iron shank. Although no witness went to the extent of calling it “ iron-sick,” evidently there were plain indications of weakness. In such case, the employing stevedore could not rest on the ship’s performance of its duty, or rely on the assurances of the mate and boatswain. The court’s charge as to fracture at the bottom of the bolt was entirely in appellant’s favor. He left to the jury the question of proper inspection, and adopted appellant’s request as to the distinction in this respect between the obligation of the shipowner and the duty of the master stevedore to the decedent. The court properly declined the quoted request about applying the hammer test. It limited such test to something about the bolt, thus ignoring the surrounding wood; and as the evidence pointed to a break at the deck or just below it, the request recurred to the idea of appellant’s witness, that the break was at the bottom of the bolt. The request was also prefaced by an erroneous statement that the appellant had a right to rely upon the ship having performed its duty in respect to care and-inspection, a ruling which had been previously asked, and properly denied. It cannot be fairly said that the verdict was excessive for a man leaving a widow forty-four years old, and five children.

I advise that the judgment and order be affirmed as to this appellant, with costs.

Present—Jenks, P. J., Rich, Putnam, Blackmar and Jaycox, JJ.

Judgment and order unanimously affirmed, with costs.