222 N.Y. 155 | NY | 1917
Plaintiff was a barge captain, thirty-five years old. He had been a sailor all his life and a barge captain in and about New York harbor for twelve years. He was employed by defendant, in charge of a freight boat, one hundred and thirteen feet long, thirty-two feet beam. At the time of the accident the barge was lashed to a tug and was about to be moored at a pier at Hoboken in order to discharge freight. The movements of the barge and tug were under the immediate control of the captain of the tug.
The pier was six to seven hundred feet in length and had seven gangways. The barge was about to be pulled up to No. 2 gangway. Defendant’s foreman on the pier, who was directing the movements of the tug captain, gave directions to plaintiff to get out his line on to a cleat indicated by him on the pier at the further side of No. 3 gangway, so as to make the forward door of the barge stop at No. 2 gangway.
The record does not indicate very clearly to a landsman exactly what happened then as plaintiff’s testimony was given with the aid of a model not produced in this court, but the result of it was that, as plaintiff was getting himself in position to get the turn around the bitt, and was paying out the line, he raised his left foot from the deck. The part of the heavy hawser that was coiled up on the deck, as the barge was moved on past the cleat by the tug, was drawn out and suddenly turned and formed a kink which looped around plaintiff’s left leg and took his foot off against the bitt.
The action was brought under the Federal Employers’ Liability Act, and it is conceded that defendant was a
It was, therefore, necessary for the plaintiff to establish only that his injuries were due to lack of proper care on the part of the dock foreman. The Appellate Division has reversed on the law a judgment for plaintiff and dismissed the complaint on the ground that “ there was no negligence of any employee of the defendant which caused the accident or contributed to it,” and that the change in directions had no causal connection with the accident. We think that this was error. The work of plaintiff was necessary and usual for the purpose of placing the barge alongside the pier at the gangway selected by the dock foreman, and he was under. the direction of the dock foreman in that regard. Men unfamiliar with the details of practical seamanship may find it difficult to visualize the simple operation of mooring a barge, but it seems clear that a jury might say that the change in the directions as to the place of tying up the barge had everything to do with the case;, that such change, made without plaintiff’s knowledge and when he expected that the barge would gradually slacken its speed and stop, created an entirely different and unanticipated combination of powerful and dangerous forces in which plaintiff was entangled and injured; that a coil of five-inch hawser, turning rapidly and unexpectedly as it was being payed out is an imminent menace to the safety of those handling it; and that the dock foreman did not exercise proper care when he created this danger without warning plaintiff.
That the accident, as the opinion of the learned court
As the complaint was dismissed by the Appellate Division on the ground that there was no evidence of negligence, the reversal was upon the law. (Code Civ. Pro. § 1338.) The judgment of the Appellate Division should be reversed, and that of the trial court affirmed, with costs in this court and in the Appellate Division.
Hiscock, Ch. J., Chase, Collin, Hogan and Crane, JJ., concur; McLaughlin, J., not sitting.
Judgment reversed, etc. .