145 N.Y.S. 22 | N.Y. App. Div. | 1913
Plaintiff, while engaged in defendant’s service, sustained serious injuries by falling through an open hatch in the floor of a coal bunker in the steamship El Occidente. The complaint alleged negligence as the cause thereof, both at common law and under the provisions of the Labor Law relative to employers’ liability (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], §§ 200-204, as amd. by Laws of 1910, chap. 352). At the close of the case plaintiff asked to go to the jury under the statutory provisions. From a judgment entered upon a verdict in his favor and from an order denying a motion for a new trial this appeal comes.
Plaintiff was an electrician. On May 1, 1912, he had been in defendant’s employ about a year, and on the day in question he was sent to discover and repair a defect in the fire alarm electrical circuit in one of the coal bunkers of the ship. A helper was assigned him. Instructing his helper to get candles they passed through the boiler room into the lower coal bunker on the starboard side of the ship, which was empty, and then passed through a hatch or opening to the coal
Plaintiff’s testimony is not supported by that of any other witness, and two witnesses for defendant testify that he fell
- We deem it unnecessary to discuss the question of defendant’s negligence, or the weight of the evidence respecting the same. For the purposes of this appeal, if we accept plaintiff’s statement as true, it affirmatively appears that he was guilty of negligence contributing to the accident, and the motion made at the close of the entire case to dismiss the complaint upon that ground should have been granted. Notwithstanding his long experience in the navy, covering a period of more than seven years, and his employment as an electrician by the Ward Line Steamship Company for more than three years, plaintiff asserted that he had been in the coal bunkers of a steamship but once before. That may be true, although his helper testified to the contrary, and that before the accident they had frequently worked together in coal bunkers. But plaintiff admitted that he was thoroughly familiar with the construction of steamships; that before the accident he knew that necessarily they had coal bunkers, and “that they have got to have places for the coal, and they have got to have egress and ingress from deck to deck up and down. Sometimes it is a hole or hatch, sometimes it is a companion way, sometimes it is a stairway.” He also knew that there were “ hatches leading from the upper deck where you throw the coal down into this bunker,” and that there were bunkers underneath the one at which he was at work, and that communication between these bunkers was by means of hatches or openings, for he had passed through one from the lower to the upper bunker that very morning. The diagram of the ship which plaintiff put in evidence showed a number of such openings between the point where he entered the bunker in the morning and the point where he fell. It is true that he said he did not notice them because he “followed my [his] helper,” who was more familiar than he with the locality. But he admits that in the forenoon he left the helper upon the starboard side of the ship, and, with a light in his hand, proceeded around the boiler room and forward upon the port side of the ship to the place
The judgment and order denying the motion for a new trial should be reversed, and judgment directed for the defendant dismissing plaintiff’s complaint, with costs of said action
Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.
Judgment and order reversed, and judgment unanimously directed for the defendant dismissing plaintiff’s complaint, with costs of said action and of this appeal.