42 N.Y.S. 29 | N.Y. App. Div. | 1896
The plaintiff sustained a physical injury on the defendant’s steamship Lampasas, lying at her pier in East river, city of New York, on May 25, 1894. It was a three-deck ship. The plaintiff was employed as longshoreman by the defendant to assist in loading and stowing a cargo on the vessel. He went to work there in the morning, and in the afternoon he was engaged in the hold, below the, main hatch, until about five o’clock, when, being directed by the foreman to come on to the lower deck and go to the forward hatch and stow freight there, he proceeded to go there and stepped into that hatchway, fell into the. hold and was seriously injured. He alleges that his injury was occasioned by the negligence of the defendant. This charge is not founded upon any defect in the construction of the vessel, or upon any want of competency of the foreman under whose direction he was performing service. But he does
The plaintiff says he did not know that the hatchway was open, and that he could not see it by reason of the darkness. His testimony is that he never before that day had worked inside a ship ; that his work before then about the defendant’s steamships was in trucking freight to and from the dock in unloading and loading cargoes. In doing that he had previously worked in April and May some number of hours each of eighteen days, making together about 116 hours. While he was in some sense a green hand at the service in the ship, at the time of his injury, it is fair to assume that he knew something of the location of the hatchways in the lower deck, although he may not have known of the habit of leaving them open when not in actual use for the reception of freight, or that there was no guard about them at such times.
The principles governing the relative rights and duties of employer and employee and those upon which the liability of the former to the latter upon the charge of negligence are dependent, are so well established that it is unnecessary, at any length, to state them here. The difficulty lies in the application of them to the facts of a particular case. When the plaintiff went to work for the defendant, he assumed the ordinary hazards incident to the service, which hazards included those arising from the negligence of his co-employees and the obvious conditions of danger. The defendant, not insuring his exemption from danger from any cause, undertook that the place of service should not, by any want of reasonable care on its part, be or become unsafe, and that such care should be used to supply him with safe and suitable implements and appliances for the performance of the service. The JLampasas was 350 feet in length. The ports which opened into the lower deck were between the main and forward hatches, nearly seventeen feet from the latter, and were five feet high and six feet eight inches wide. The size of
Thereupon is invoked the principle that when the master has supplied suitable materials and appliances available to the use of the employees in the service, and for their protection, the failure to employ them is their fault, not his. Such undoubtedly is the rule if they are advised of the fact, or if suitable regulations are provided for its application. (Filbert v. Del. & Hudson C. Co., 121 N. Y. 207; Cregam v. Marston, 126 id. 568.) The latter fact appears only by the testimony of witnesses having responsible positions in the service of the defendant. And it does not appear that the fact that lamps or lanterns were kept on the dock for the employees was known to the plaintiff, or that the existence or situation of the covering for the hatchway was known to the employees who constituted the gang of workmen, so called; and the foreman testified that he could not tell where the hatches (covering) for this hatchway then were, because they were off the night before, but that it was usual to put them alongside the hatchway or abaft of it, between stanchions, wherever there is a handy place to put them on again. He designates the men at work as a green gang, and that he supposed “ they didn’t know enough to go for lights themselves.” The foreman was in a situation where he could have seen that it was dark forward when he directed the plaintiff to go there. But he must be deemed to have been a co-employee, and his fault, if such, in that respect does not aid the plaintiff. (Loughlin v. State of New York, 105 N. Y. 159.)
The most available proposition upon which to base the claim that no negligence was imputable to the defendant, is that the latter had provided for the use of the employees all the means essential to their protection. If this were so, in the full sense of the term, that charge against it cannot be supported. The evidence on the part of the defendant is that, while engaged in putting a cargo aboard the ship, the hatchways are left open, although some of them are not constantly in use; and that this is necessarily so because portions of the freight are from time to time arriving at the dock, and it, consisting of different kinds of goods, is so classified that some of them are to be lowered through the different hatchways during the entire process of loading, and consequently it cannot be known how soon the use of any one of them may be required. This method of facilitating the loading of a ship with freight is reasonably business-like and apparently not subject to criticism. But the further question is whether the defendant, by furnishing upon the dock lamps and lanterns available to the employees and by having materials to cover the hatchways in the lower deck near them, which the employees may be permitted also to place over them, has done all that reasonable care requires of the defendant to give safety to the place in which the service of the workmen may be required.
Them is evidence tending to prove that, when a vessel arrives at the dock, men appearing about there are employed to take off the cargo and to reload-it with freight, and that they may have had no experience in the work they are called upon to perform in that service. They, unadvised, may not know of the facilities which can be afforded them when circumstances render their use and application desirable for safety. Conditions like that which caused the fail
The verdict was for $25,000. It is insisted, on the part of the defendant, that this was excessive, and we are inclined to think it is so. The plaintiff had no established business, nor any regularly stated employment. He was at the time of the age of twenty-eight years, presumably in good health, and strong ; had been employed in various kinds of labor, and was dependent for his earnings upon such employment as he could obtain. He puts his wages received at about twelve dollars per week. It is true he suffered much from the injury which resulted in the amputation of one of his legs; and although it is difficult to find a measure for pain in pecuniary consideration, as none would be an acceptable inducement to suffer it, yet, when it has occurred, the measure of compensation, simply as such, must be considered upon a reasonable basis of estimate.
The view taken of the case leads to the conclusion that the judgment and order should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery of damages to $15,000, and in that event that the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.
All concurred, except Babtlett, J., not sitting.
Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiff, within twenty days, stipulates to reduce the verdict to $15,000 and a corresponding reduction in the extra allowance granted; and in case such stipulation is filed, the judgment so modified is unanimously affirmed, without costs of this appeal to either party.