
    Peter Johnson, Respondent, v. The Prince Line, Limited, Appellant.
    
      Negligence — injury to a longshoreman from a draft of cargo raised by a winch falling upon him while stowing a cargo in the hold of a vessel— duty of the ■ employer to make a rule that two men must operate a winch.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, while stowing a cargo in the hold of a vessel operated by the defendant, it appeared that at the time of the accident the drafts of cargo were being lowered into the hold by means of a winch; that, as was customary in similar undertakings, the defendant employed two men about the winch, one to operate the rope attached to the winch and the other to operate the steam valve appurtenant to the winch; that while one of the said two men was temporarily absent from his post for the purpose of going to a neighboring saloon for a drink and while the other man was attempting to perform both his own • and the absent employee’s duties, .he permitted a draft of cargo to fall into the hold and injure the plaintiff. The negligence charged against the defendant was its failure to promulgate a rule forbidding the operation of the winch by less than two men.
    
      
      Held, that in the absence oí ■ evidence that a similar accident had ever occurred before, or that the workmen in the hold were called upon to occupy a place . where the drafts of cargo hung over them, Or that any other employer had ever discovered the necessity or advisability of a rule prohibiting the operation of the winch by less than two men, it was improper for the court to submit to the jury the question whether the defendant was negligent in not promulgating such a rule.
    The fact that such a rule would have prevented the particular accident in question is not the test of negligence. ' ;
    Appeal by the defendant, The Prince Line, .Limited, from a judgment of the Supreme Coúrt in favor of the. plaintiff, entered in the office of the clerk of the county of 'Kings on the 28th day of June, 1904, upon the verdict of a jury for $2,500, ¡and also from an .order entered in said clerk’s office on the 22d day of June, 1904, denying, the defendant’s motion for a new trial. made upon the minutes.
    
      H. Snowden Marshall [Frederick F. Fishel with him on the brief], for the appellant.
    
      Joseph Rosenzweig, for the respondent.
   Woodward, J.:

The complaint alleges several groutids of negligence on the part* of the defendant, but the case as finally submitted to the jury resolved itself into a single question of fact, and that was whether the defendant was negligent in not providing rules and regulations for the operation of a winch under the. circumstances under which the accident complained of occurred,, the question ' being raised by defendant’s exception.to the charge. : The facts, which are not seriously in dispute^ are as follows:

The plaintiff was employed in a gang of eight men as a longshoreman and was engaged in stowing away-a cargo in the Eastern. Prinee, a steamship operated by the defendant. He Was "down in-the hold of the vessel. ■ The Work under way was transshipping from a barge to the hold of the. vessel a quantity of flour in bags. The-plaintiff,, with a helper, was stationed upon a temporary platform erected under one of - the hatchways, and it Was the duty of these men when a draft of ten or twelve bags of flour was. lowered to them to take it from the sling and to place it where it could be reached by others and carried to the point where it was being Stowed. On the deck of the vessel" was an ordinary winch used in this class of work, and at the time of the accident the drafts were being made up'on the barge and the sling attached to a rope which passed around the drum of the winch, and were raised by steam power to a point where they would swing over the hatchway where the plaintiff was at work. The steam was then turned off and the draft was lowered by hand, the rope being wound around the drum of the winch and permitted to slip around the same by the man employed for that purpose, who allowed the rope to slip through his hands when the draft was to be lowered. In addition to the man who handled this rope the defendant employed a man to operate the valve which controlled the steam operating the winch, and when the" draft had been drawn, up from the barge and suspended, it was the duty of the latter to turn off the steam. One Jorgensen, who had been placed to operate the rope about the drum of the winch, left his post for the purpose of going to a neighboring saloon for a drink, leaving the winehman ' to turn on and off the steam, and at the same time to operate the rope to lower the drafts. While attempting to perform both of these services the winehman in some manner permitted one of the coils of rope to fall off from the end of the drum, and the draft, which hung suspended over the hatchway, fell to the hold below striking the plaintiff in such manner that he was thrown from the platform where he was working and was seriously injured. It was brought out in the- evidence that it was customary to have two men to operate the lowering apparatus in the manner then under way, and. that the defendant had promulgated no rules requiring the. presence'' of two men at all times when the drafts were being lowered in the manner described, and the learned justice presiding at the trial charged the jury that if they found that in the exercise of reasonable care the defendant should have anticipated this accident it was its duty to have provided a rule in substance forbidding the operation of the winch in the manner then in use in the absence of two men. The defendant excepted to this charge, and the only question presented upon this appeal is whether this question was properly left for the determination of the jury.

While it is probably true that the necessity for rules is for the jury to determine when the evidence is sufficient to raise the question (Devoe v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 1, 10), we are of opinion that in the case at bar the evidence did not justify the submission of this question. There was not only no evidence-that any similar accident had ever occurred, but it was affirmatively ' shown that the man Johnson, who was attempting to do both men’s work, and who had had an experience of forty years in similar work, had never known of such an accident. There was no evidence that any other employer had ever madfe or enforced such a rule, although it was shown that winches of the character here under consideration had been in use for twenty years or more. But back of all this, there was no evidence that the defendant had any reason to anticipate that_one of its employees would abandon his work to go to a saloon for a drink or that there was any reason to anticipate danger to onq of its employees in the temporary absence of one of the -men who was employed to operate the winch. There is no evidence that the plaintiff, occupying a place upon a temporary platform, was necessarily in' such position, or that it was the customary method of doing the work, while the plaintiff himself testifies on cross-examination: “ In all my seven years’ experience I had never geen a bag drop. That is right. Of course we wouldn’t stand right underneath the draught. We never did. I never did, for my part. A maii wouldn’t be that foolish to stand underneath 'things like that coming down over your head, and1 for that reason I always kept to one side like. * ■ * * I always kept out from ' underneath the bags. I knew the bags were coming, because they just come right over the skid, in the middle of the skid — to the stage. We stood one on each side of the place where the bag was; didn’t stand right underneath.” ' It will thus ibe seen, that the defendant, so far as the evidence goes, had no reason to anticipate danger .to the. employees; they did not stand under the drafts, but to one side, and the only evidence on which could be predicated any lack of care on the part of the defendant in not promulgating rules to prevent the operation of the winch by a single individual in the case of the temporary absence of one of - the men was the fact that this accident happened. ' It seems to us that* in order to have a question for the jury, it was necessary to have some evidence that, a rule of this kind would be practical in operation, and that, before the happening of this accident, there was something in the facts and circumstances surrounding the employment which should have suggested to reasonably prudent men that there was danger to employees in the absence of such a rule. The case is devoid of such evidence. There is merely the' fact that this accident occurred and that the defendant had not made a rule.for the government of the operation of this winch during a temporary absence of a fellow-employee, who in this particular instance was not answering a normal demand of nature, but was engaged in satisfying an appetite for drink, and a rule which would suspend the entire operations of a gang of men engaged in loading a ship, while one of their number went out to take a drink, would require some fairly well-defined and reasonably anticipated danger to justify it. “ It is known of all,” say the court in the Devoe Case (supra), “ that men are prone to run risks in order to save time and trouble, especially when the risk lasts but a moment and the precaution necessary to guard against it requires a considerable period of time,” and it was pointed out that in making rules there should be a recognition of these tendencies, to the end that the real object of the rules might be accomplished.

If the evidence had shown that a similar accident had ever occurred where it would have been likely to have attracted the attention of the defendant; if it had been established that the plaintiff was called upon to occupy a place where these drafts hung over him, or if it had appeared that any other employer had ever discovered the necessity or advisability of such a rule as the learned court suggested, there might be some question for the jury to pass upon, but with no other proof than that of the mere fact of this particular accident, which may have been due to the particular circnmstahces of the moment, and which might not occur again in a lifetime, and of the fact that the defendant had made no such rule, before them, it was error to submit the question to the jury. The fact that such a rule would have prevented the accident here under consideration is not the test of negligence; the question is, did the defendant have reason to believe, or was it reasonable, in the exercise of reasonable care, to anticipate that this or a similar accident would occur if it failed to make a rule or regulation governing the operation of this winch during the temporary absence of an employee % There-were no facts before the jury from which such an inference could be legitimately drawn, and it is onlyi in the presence of such evidence that there is a question for the jury to determine. (Corcoran v. New York, N. H. & H. R. R. Co., 58 App. Div. 606; Ward v. Manhattan R. Co., 95 id. 437, 441, and authorities there cited; Koszlowski v. American. Locomotive Co., 96 id. 40, 44, and authorities there cited.)

The judgment and order appealed from should be. reversed and a, new trial granted, costs to abide the event.

• Bartlett, Rich and Miller, JJ., concurred; Hirsohberg, P. J., concurred in result.

■Judgment and order reversed and new trial granted,■ costs to abide the event. -  