148 N.E. 650 | NY | 1925
Plaintiff, an able seaman on the steamship PresidentRoosevelt, was ordered by an officer to paint *476 the draft numbers on the stem while the steamship was lying in the harbor of Bremerhaven. There is evidence that the stem of the vessel was between two barges overlapping it on either side. Plaintiff stood upon a camel raft or fender, which was intended to keep the vessel from contact with the wharf. The raft was made of logs, with holes between them through which slime and water rose, making it hard to keep a foothold. The difficulty was corrected to some extent by placing planks across the logs, but only two planks could be found. Plaintiff, painting with his right hand, held on to the stem with his left in order to keep steady. There is evidence that he asked his officer for a boatswain's chair, but none was given. The water was in constant agitation through the movement of vessels which were coming into the basin and leaving it. As a result of this movement, one of the overlapping barges was driven against the stem, and struck the plaintiff's hand. He suffered injuries for which he sues.
We think that evidence of negligence, though slight, is not lacking altogether. The defendants' officer admits that the plaintiff's position was one of danger if the steamship was moored with its stem between the barges. He would not order a man, he says, to work in such conditions. He denies, it is true, that there was overlapping except on one side, but in this he is contradicted by the plaintiff and by others. We have evidence, therefore, that the plaintiff was ordered to work in surroundings which were known by his superior to involve the risk of a collision. When we add to this the evidence descriptive of the condition of the raft, we think a basis has been laid for an inference of negligence. A raft, even though unsteady, may be safe enough in some surroundings. Here the overlapping barges charged an employer with a duty to supply protection against sudden and untoward contacts, or so the triers of the facts might find. "It was not necessary that the defendant *477
should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye" (Munsey v. Webb,
The question remains whether the duty of protection was due from the defendants or from others. The plaintiff sued the United States Shipping Board Emergency Fleet Corporation as the owner or charterer of the vessel, and Roosevelt Steamship Company and Moore McCormack Company, Inc., as managing agents. The complaint was dismissed as to the charterer, and a verdict rendered against the managers. The contract between the Board and the companies leaves the relation between them uncertain and indefinite. The companies, acting without compensation and as a patriotic service, are to manage the vessels in co-operation with the Board. Many of the things they are to do are specifically enumerated. They are to man, equip, victual and supply the vessels and pay all the costs and expenses incident to the operation, the Shipping Board to supply the necessary funds. They are to exercise reasonable care in maintaining the vessels in a thoroughly efficient state, the Shipping Board to pay for the necessary labor and material. They are to appoint representatives, one for each company, who are to act with a representative designated by the Board, and to be subject to his orders. They are to establish for the purpose of the agency a special organization, apart from their general business. They are to describe themselves as "managing operators" in their dealings with the public while the agency continues, but the privilege is to be theirs to put an end to it at will.
We assume that this contract, standing unexplained, would lay a basis for a finding that the companies so described were the employers of the crew and chargeable with the duties attached to that relation. The defendants *478
tried to show, however, by evidence of the course of dealing, that the Board was the employer, and that the companies were acting by their representatives in an advisory capacity. They were allowed to show by their witnesses that they did not hire the crew, but the court would let them go no farther. Exclusion of the testimony was placed upon the ground that the contract between the Board and the companies was not subject to contradiction. Some of the questions may have been improper in form, but form was not the basis either of objection or of ruling. Without proof of the shipping articles, the jury were instructed that the relation between plaintiff and the companies was that of servant and employer, and this in the face of the testimony by the witnesses for the defendants that neither of the companies was a party to the hiring. We are unable to uphold these rulings. Even if the controversy were one between the Board and its managers, evidence would be admissible that this gratuitous agency had been modified or abandoned. By express provision, as we have seen, it was terminable at will. But the controversy is not between the Board and the companies. The controversy is between the companies and the plaintiff who takes nothing under the contract either as party or as privy. As to him, the parol evidence rule does not apply at all (Folinsbee
v. Sawyer,
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgments reversed, etc. *479
