
    Michael Oats, Appellant, v. New York Dock Company, Respondent.
    Second. Department,
    December, 1905.
    Negligence — injury by fall of door on dock.—no recovery by licensee.
    A longshoreman, not employed at the time hy the defendant, who had been requested by defendant’s foreman to remain about the dock as was the custom that he might be available for employment, should a boat come in to discharge its cargo, and who, while walking back and forth upon the dock to keep warm was injured hy the falling of a door which he knew to he in an unsafe condition, there being at the time a strong wind and a rising tide which overflowed the dock in places, cannot recover for such injuries. He was a mere licensee at the time and the defendant owed him no duty to keep the door securely in its place.
    
      Appeal by the plaintiff, Michael Oats, from a judgment of the Supreme Court in favor,of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of January, 1905, upon the dismissal of the complaint by direction of the court at. the-close of the plaintiff’s case upon a trial at the Kings County Trial Term.
    
      William O. Miles, for the appellant.
    
      H. Snowden Marshall [Frederick E. Fishel with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff, a longshoreman, brings this action to recover 'damages for personal injuries sustained by him through the falling of a heavy warehouse door upon defendant’s dock. Upon' the trial the plaintiff testified that he was a longshoreman; that he was not employed by the defendant upon the day of' the accident, but that' lie. had been requested by the defendant’s foreman, to remain about the dock that he might be available in the event of a 'ship or canal boat coming in to discharge a cargo or to receive one. ' This appears to have been the general custom, those having preference in employment who were there when there was work to be done. The dock extended out into the river a'distance of 300 or 400 feet, Was in a dilapidated condition, which fact was fully known to the plaintiff, who had been around there for twenty-five years, and at the time of the accident the plaintiff was walking along the dock —: walking back and forth to keep warm — at a distance of about 300 feet from the point'where he came" upon the dock. There does not'appear to have been any invitation on the part of the defendant,, either expressed or implied, that the plaintiff should walk along this dock at this point; he was serving no possible purpose of the defendant in being there, except that he was waiting in the vicinity for, a job to develop, and wé fail to discover that the defendant owed this plaintiff any other duty than to refrain from setting traps or wantonly exposing him to injury. He may not have been a trespasser, but he occupied no1 nearer relation than that of a licensee, and under such circumstances, the defendant owes no active duty. The plaintiff knew of the condition of the dock; knew that the warehouse doors had fallen, that they were in a dangerous condition, and if he chose to walk up and down the dock, when the rising tide and a high wind favored a repetition of the accidents which had occurred so often that he was familiar with them, it is not clear how the defendant could be liable to him for the damages he may have sustained. The defendant did not owe him the duty of keeping this door securely in its place, unless he was employed by the defendant, or it had induced him to occupy the position, and before the defendant could be liable in any event, it was his duty to show freedom from contributory negligence. The facts to which he himself testifies show that he knew of the danger; that he knew the tide was high, overflowing the dock in places ; that the wind was blowing strongly, and that all of the conditions were favorable to an accident upon this dilapidated dock, yet he chose to walk up and down in front of these doors, 300 feet from the entrance to the dock. Clearly the defendant was not liable to a mere licensee under these circumstances, and the learned trial justice properly dismissed the complaint upon defendant’s motion.

The judgment appealed from should be affirmed, with costs.

Jenks, Rich and Miller, JJ., concurred; Hirschberg, P. J., dissented.

Judgment affirmed, with costs.  