
    Deborah B. Upton, Adm’rx, Resp’t, v. Edward B. Bartlett et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Master and servant—Negligence—Might watchman.
    Plaintiff's intestate was night watchman on defendants’ enclosed pier, and finding one of the doors open undertook to close it, when a guard rail fell upon him, knocking him into the water, and he subsequently died of pneumonia .caused thereby. Defendants’ foreman had been notified of the dangerous condition of the guard rail two days before. Held, that intestate, in closing the door, was acting within the limits of his duty, and that in the absence of contributory negligence on his part defendants were liable.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    On May 11,1887, William Cf. Upton, the husband of the plaintiff, was in the employment of the defendants at the Anglo-American stores, in Brooklyn. A dock of the defendants was covered with a shed upon the sides of which were openings through which the cargoes of vessels were delivered. In the side of this shed was a large sliding gate about eighteen feet high and weighing about 900 pounds. It was a sliding gate suspended by two wheels. The gate was hung by iron hanger straps to the axis of track wheels which ran upon an iron track. This track was upon the top of a wooden track rail attached to the outer side of the house. Outside of the track wheel and rail was an apron or hood, consisting of short pieces of inch boards nailed to the outer edge of the roof. This apron was still further protected by an outside guard rail to prevent the tackle of ships which were loading at dock from carrying away the apron.
    A boy named Bagnall assisted Upton to close the gate. When the gate was nearly closed it was found that some of the apron boards had got between the gate and the side of the gateway at the top. Bagnall took a crow bar and attempted to lift the gate along, while Upton took a long gas pipe and attempted to pry out the boards, and in trying to pry out the boards he pried out the guard rail outside of the boards, which came down and struck him, knocking him into the water. He was taken out by Mr. Hawkins and sent home in an ambulance. He subsequently died of pneumonia May 29th.
    
      Defendants’ foreman had been notified two days before that the hood boards were protruding inwards and that the guard rail was loose and dangerous and liable to fall down and knock one overboard and cause damage.
    
      W. W. Goodrich, for app’lts; Archibald C. Shenstone, for resp’t.
   Pratt, J.

The plaintiff’s intestate was night watchman upon defendants’ enclosed pier. His principal duty was to prevent pilfering by river thieves.

After the work of the day had been completed the deceased came upon the pier to perform his duty as watchman. Finding one of the large doors at the side of the enclosed pier standing open, deceased endeavored to close it, and in that effort met his death.

A recovery in this action is now resisted upon the ground that closing the open door was no part of his duty. His duty was to prevent pilfering, and if closing the open door was a reasonable and proper step in the performance of that duty, he cannot be said to have gone beyond its limits. Had he done less and theft ensued, as would have been probable, he would have justly been suspected of complicity with the thieves.

At request of defendants the court charged the jury that if deceased went beyond the line of his duty in closing the door, the plaintiff could not recover.

As he was lawfully upon the pier, in defendants’ employment and invitation, and was not engaged in an illegal act, it is not easy to see why he was not entitled to be safe so long as he was not guilty of any contributory negligence.

To the doubt expressed in the charge the meagreness of the verdict, may perhaps be attributed.

We see no evidence of contributory negligence.

The notice of the defect given to the foreman of defendants was sufficient to charge them with responsibility.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  