
    Henry W. Thomas, Adm’r, Resp’t, v. Gerd. H. Henjes, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Negligence—Keeper op pier.
    The keepers of a pier upon navigable waters owe a duty to keep it in a safe condition.
    3. Same.
    Defendant and one W. owned adjoining docks, and upon W.’s dock was a derrick which was used in unloading boats at defendant's dock. The proof was conflicting as to whether defendant was in possession thereof. Plaintiff’s son, who was a boatman upon a boat fastened to defendant’s dock, was killed by the fall of the mast of the derrick. Held, that if defendant either erected or was in possession of the derrick and it was dangerous, and while not in use fell and killed plaintiff’s intestate, these-facts would sustain a finding of negligence.
    Appeal from judgment in favor of plaintiff entered upon verdict, and from order denying motion for a new trial on the minutes.
    This action was brought by the plaintiff as admiúistrator of his son, Samuel B. Thomas, to recover damages against the defendant for his alleged negligence.
    
      
      Hubbard & Rushmore and John D. Pray, for app’lt; G Fergueson, Jr. (James G Church, of counsel), for resp’t.
   Barnard, P. J.

The defendant and one West own docks adjoining each other on Gravesend bay. There was a derrick erected on the West part of the docks, but it was used in unloading boats at the Hen jes dock. The defendant leased to Morrissey the privilege of unloading at his dock. The plaintiff’s intestate was a boatman employed on the barge Carrie loaded with stones, made fast to the dock. The cabin was nearly opposite the mast of the derrick. Some question was made whether the stone barge was tied to the derrick. The plaintiff produced evidence to the contrary, and showing that the barge was tied to the tie pile on the dock. The barge commenced unloading on the 20th day of June, 1890, using its own derrick. In the evening the deceased went out of the cabin of the barge, and the mast of the derrick and its appurtenances fell and killed him. The mast was insufficient and dangerous. It was made a question on the trial whether or not the defendant was in possession of the derrick. The Bensonhurst Club occupied a portion of the West dock, but proof was given tending to show that the defendant was in possession of the derrick in connection with his own dock. This occupancy of defendant was found by the jury in a conflict of testimony. The derrick was erected by the defendant’s son, but proof was given tending to show that the use of the dock, including derrick, was carried on for the defendant’s benefit. This question also was found in favor of the plaintiff.

Assuming that the defendant either erected or was in possession of the derrick on the dock, and that it was dangerous, and while not in use it fell and killed the plaintiff’s intestate, these facts will sustain a finding of negligence. The keepers of a pier upon navigable waters owe a duty to keep it in safe condition. Swords v. Edgar, 59 N. Y., 28.

The defendant was owner and occupant of the derrick, and it is a question whether he did not actually construct it.

The deceased was guilty of no contributory negligence. He had the right to assume the safety of the structure without an examination, and the fact averred by defendant that the barge was tied to the derrick is found in his, plaintiff’s, favor upon conflicting evidence.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  