
    Fred Seyford, Respondent, v. Southern Pacific Company, Appellant.
    Second Department,
    June 29, 1916.
    Master and servant—negligence — injury by fall through hatchway in hold of ship — contributory negligence — failure of plaintiff to take route known to be safe.
    Where the plaintiff, who was employed to inspect defective electric apparatus in the hold of a ship, had, with the aid of a lantern, located the defect and had placed the lantern by an open hatch so that he knew of its position, but on returning to his work after luncheon took a different route instead of following the one formerly taken and which he knew to be safe, he cannot recover for injuries received by falling into the open hatch which he had formerly located, and a verdict in his favor is against the weight of evidence.
    
      Rehearing of an appeal by the defendant, Southern Pacific Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of March, 1915, upon a verdict of a jury, and also from an order entered in said clerk’s office on the same, day denying defendant’s motion for a new trial made upon the minutes.
    
      J. Ard Haughwout [Everett J. Esselstyn with him on the brief], for the appellant.
    
      Alton B. Parker, for the respondent.
   Thomas, J.:

This court decided that there was not, and the Court of Appeals considered that there was, sufficient evidence to justify the submission of the issues to the jury. (159 App. Div. 870; 216 N. Y. 613.) The present question is whether this court, that regarded the record destitute of any sustaining evidence, now finds it in preponderating quantity. The plaintiff, serving as a competent and experienced person to look after the electrical apparatus of defendant’s ships as they came to the port of New York, fell through a hatch in the upper coal bunker of one of them. Sent by his superior with the helper Kenney, available by reason of some familiarity with the bunkers in question, plaintiff made no preparation save to direct Kenney to “get the candles,” which he did, although by the testimony of the engineer Weiss there was an opportunity to obtain lights. Through an open hatch the men passed from the lower to the upper bunker, where was found a lantern, as plaintiff testified, although Kenney stated that they took two lanterns from the boiler room. But I follow plaintiff’s version. He took the lantern and followed Kenney along the line of the fire alarm circuit, wherein the defect to be remedied was sought, to a door or opening in a bulkhead marked “X”on plaintiff’s diagram. I do not stop to consider what hatches beset their way, or the evidence tending to show that they were open. Whatever the exposure to perils in the darkness of the bunker, and their notice and appreciation of them, they came in safety to and passed through the door into another section of the coal bunker, and thence turning to the left and, as I understand, towards the port side, they cleared to their right an open hatch at the side of which plaintiff deposited the lantern. Shortly beyond it, the defect in the line was found and, after a brief time, the men went to their lunch. Attention should be centered on the situation then before them. The question no longer is how they fared in reaching the place where they were, save as they may have been made aware of the condition of the hatches. At last they had found a safe way. Plaintiff had made it such by traveling ifc and setting the lantern to guard the only danger, to wit, the open hatch. The plaintiff, acting for his own safety and as his master’s agent, had a way hedged by no perilous exposure, save one, and on the edge of that he had placed his lantern, which, before him and on one side, lighted up a path of security, and on the other made visible the sole danger. When the men went to lunch, they had but to repass over the way they came to the door at “X,” whence there was a short course to the daylight, without retraversing the dark and devious course by which they had approached the entrance. Which way the men went out does not appear. Plaintiff testified that he did not recollect. Kenney was not asked. So that the way known to be safe remains the only way used, so far as appears. From lunch, Kenney returned first and was at work on a ladder beyond the open hatch with a lantern, as he says, with only candle light as plaintiff says, when the latter came back through the door at “X.” In any case, plaintiff, within the door, stood and made observation. He says that he saw Kenney at work, the lantern still standing on the far side of the open hatch, about ten feet from him, and throwing its rays between him and Kenney. What way would a servant exercising reasonable prudence, both for himself and his master, adopt to go to Kenney, with a known, tried, guarded, safe place to his left and utter darkness beginning at a few feet to his right ? The plaintiff chose a way some three or four feet to the right side of the open hatch, and keeping his eyes on it, and not searching towards his darkened right hand, he fell into an open hatch which he says he did not see from the door, but which he would have seen if it could have been seen. His own words describe the happening: “ I went to the hole and having this hole in my mind and watching this hole constantly so L wouldn’t walk into it, I walked out of the way of it, still seeing the hole, and as I walked out I must have stepped on a, piece of coal or my feet went into another hole.” Kenney testified that plaintiff fell through the lighted hatch at his left, and the engineer Weiss stated that he drew him out from underneath that hatch, but the jury adopted plaintiff’s version, and the discussion is directed to that." The jury has found (1) that the plaintiff acted as a man of ordinary prudence would have done in abandoning the tried, safe, illumined way, and adopting a new way farthest from the light, with the known hatch on his left, on which he kept constant watch, with darkness on his right becoming impenetrable; (2) that the defendant did not do what a master of ordinary prudence would have done, in that it did not place the cover on the open hatch, or guard it by lighting it or otherwise, and the Court of Appeals, deciding that it was within the range of the evidence for the jury so to find, has left to this court its functions to examine the record and to determine whether the jury, considering the evidence, should have so found. The man and the master, one or both, may have been negligent in the earlier stages, but the final act was the proximate cause of the injury. What had passed was informative and experimental. The safe way had been selected from amidst the darkness and dangers, and although it had been done and established by the plaintiff, it redounded to the advantage of the master as well as to himself. And yet the jury has found that the master should have made another way safe; that one path known to the plaintiff and guarded by light was not sufficient, but that other hatches should have been closed or lighted lest the plaintiff (as the jury found he prudently could) should cast aside what he had adopted and fortified against danger and essay passage along the confines of the darkness in a coal bunker that, to his knowledge, had open hatches, and that, too, without any attempt to see where he was placing his feet. Perchance the jury considered that he was excused from looking towards his right, as discovery in that direction was impossible. True, on his left hand was a lighted hatch which he should avoid, and on his right was obscurity merging into complete darkness, which he disregarded. But why place himself between a peril known and seen and those unknown, in a place of recognized danger, when he had already marked out the path of avoidance ? This court is constrained to answer the question to which the Court of Appeals has directed its attention, by deciding that the finding of the jury was against the weight of the evidence.

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

Jenks, P. J., Cabb, Mills and Rich, JJ., concurred.

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