228 F. 864 | 2d Cir. | 1915
The plaintiff alleged in his complaint that defendants provided the deceased with an unsafe and improper place to work where he was exposed to great and needless danger; that the place was unsafe and dangerous, in that the only way to the barge was over a plank which was unsafe, defective, and improper for use as a passageway, and that it was too narrow and of old, splintered, and uneven wood so that it did not lie firmly and securely; that it was in no. way secured, fastened, or attached at either end so as to prevent the same from rocking violently in any motion of the said scow, although defendants knew of the possibility of rocking owing to the oft-repeated and continual passage of large and heavy steamboats along the Hudson river at that point; that the said plank and scaffold was slippery and covered with clay atid water, thereby rendering it unsafe to stand upon or walk across; and that the said plank had no side-rails, guards, or protective devices of any kind whatsoever.
At the time of the accident the deceased was engaged in wheeling a barrow loaded with bricks from the shore at the brick works over upon a barge moored near the shore in the Hudson river. To provide a passage over which the bricks might be wheeled three planks had been laid between the dock and the barge making a passageway about 30 inches wide and 30 feet long. These planks were fastened together with a cleat on the bottom, but were in no way secured or fastened at either end. About 3 feet of the gang planks rested on the barge. While the man was on the planks and midway the barge and the dock and engaged in wheeling the bricks, the gangplanks fell, the end on the boat falling into the water, the other end remaining on the dock. The fall of the planks was occasioned by the barge having been rocked by a swell caused by a passing steamer. As the planks went down the man fell into the water and his barrow of bricks on top of him and he was drowned. This was on Saturday at about 12 :20 p. m. The men engaged to wheel the bricks had been informed in the morning how many tiers of bricks they were to put on the barge, and that when they had put the indicated number on board they could stop work for the day. The rules provided for the cessation of work between 12 o’clock noon and 12:45 p. m. when the men ate their lunch. The rulé was that during that period the men were not to work. The rule to that effect was never posted, and the plaintiff’s intestate was never individually informed that he was not to work at that time. The foreman said he “just told the whole bunch of them as they were there.” Whether the deceased was in “the bunch” at the time the rule was thus announced does not appear. The rule does not appear to have been made for the protection of workers. The assistant foreman’s testimony indicates that his duty was to keep his eyes on the
“Here is the harm. It is that they will go to work and they will put in any kind of brick, and I got found fault with letting them do so.”
It is evident therefore that the object of the rule was not to make sure that some one in authority should be present to warn them if it became'unsafe to use the gangplanks because of the rocking of the boat. But whatever the purpose of the rule may have been the evidence showed that it had been so generally disregarded that the jury might well have found that it had become a dead letter.
The foreman testified that he had never seen the end of the gangplanks fasteqed to a barge. A witness called for the defendant, who had been a boat captain for 35 years and had been running boats on' the Hudson river for about 50 years and was familiar with the dock where the accident occurred, was asked whether it was' customary for gangplanks to be made fast on a barge while it was being loaded with bricks, replied that it was not. He testified that he never had a man drowned in that way. He added on cross-examination that he had seen planks fastened on ferryboats. Another witness similarly called, who had had experience as a boat captain for 23 years and was familiar with the loading and unloading of bricks, testified that it was not customary to have the gangplanks made fast to the barge when the barge was at the dock, He stated also that he never had heard of a man being thrown off one of these planks. Did the manner in which these planks were allowed to rest on the barge show that defendants were negligent?
The question of whether the man assumed the risk which resulted in liis death does not arise under the Employers’ liability Raw of the state of New York. The act has abolished the defense of assumption of risk both as a matter of law and as a matter of fact. Thompson v. Levering, 155 App. Div. 554, 140 N. Y. Supp. 769.
We find the assignment of error to be without merit.
The judgment is affirmed.