
    Lewis Williams, Respondent, v. James W. Trecartin, Defendant, Impleaded with Solon E. Turner, Appellant.
    Second Department,
    March 26, 1915.
    Master and servant —negligence — duty of stevedores to guard or light under-deck hatchways where their men are not working — liability for injury to longshoreman, sustained while walking on under deck — contributory negligence — experienced longshoreman chargeable with notice of conditions in under decks.
    Stevedores have no general duty to guard, light or give warnings as to under deck hatchways, where their men are not working, especially in decks where no cargo operations are going on.
    Hence, a longshoreman, employed by a stevedoring firm which had contracted to discharge a cargo from a steamship, who left the hatch at which he was working, and while walking on the upper- between-deek, which was dark and over which his employer had no control, stepped into an open hatch and was injured, is guilty of contributory negligence and cannot recover.
    The longshoreman having worked as such for several years was chargeable with notice that the hatchways in the under decks are generally left open while the ship is in port.
    Appeal by the defendant, Solon E. Turner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of December, 1913, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 12th day of December, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      James J. Mahoney [F. Wright Moxley with him on the brief], for the appellant.
    
      William Adams Robinson, for the respondent.
   Per Curiam:

Plaintiff has a judgment for personal injuries against defendant Turner, who was a member of a stevedoring firm which had contracted to discharge cargo from the steamship Massachusetts■ at the foot of Fortieth street, Brooklyn. As one of the longshoremen in defendant’s employ plaintiff had been working on the dock up to six p. M., when he was ordered on board the ship to drive the winch at hatch No. 4. At this time three hatches (Nos. 1, 2 and 4) were working with separate gangs at each hatch. These hatches were estimated to measure about twelve by fifteen feet in size, and were about twelve feet apart. Cargo from hatch No. 4 was coming up from the lower between-deck; that is, the second deck beneath the top or weather deck. No work went on from hatch No. 3, which was closed over on the top deck and half closed in the upper between-deck, in which it is questioned if any cargo was carried. In this deck the after section of hatch No. 3 had the covers on, leaving the fore section (about six feet fore and aft) open and uncovered. The coamings of these ’tween-deck hatches were only about three inches high. In each hatchway, No. 4 and No. 2, where the work was going on, a cluster of electric lights was hung about a foot and a half beneath the top deck. The testimony was that they were poor; sometimes went out, and, being to light the hatchways where the drafts went up, were turned inward toward the hatch openings, and away from hatch No. 3.

Between nine and ten p. M. plaintiff left his work at the winch at No. 4 hatch, as he states, to get a drink. It seems that the men took water from the dock, and often had a pail down in the hatchways, where the harder work went on. Plaintiff started to go for water down in hatch No. 2. He, of course, could walk along the top deck forward to hatch No. 2, and go down by that hatch ladder. He testified that there were different objects on the top deck that might impede him, also that the top deck was not well lighted. So he went down the ladder at hatch Mo. 4 into this upper between-deck, and walking forward reached hatch Mo. 3, stepped on it and walked on, and right into the opening at the fore section, falling down into the ship’s hold. There was no testimony that any drinking water was then down in hatchway Mo. 2; that defendants had exercised any control over hatch Mo. 3, or had any reason to suppose that plaintiff’s duties would take him about this hatchway in the night.

Stevedores have no general duty to guard, light or give warnings as to under-deck hatchways, where their men are not working, especially in decks where no cargo operations are going on. Indeed, the shipowner himself is not under such a duty, unless the opening is so near the work, or the path of an employee’s duty, as to call for special precautions. (Andersen v. New York & Cuba M. S. Co., 13 App. Div. 218.) In like manner, a trapdoor in a building, when left open, is no breach of duty towards an, employee who, knowing where it was, also knew that it was likely to be opened. (Young v. Miller, 167 Mass. 224.) A contracting* stevedore, like these defendants, has no control of the parts of the ship in which his work does not lie. Plaintiff had worked several years as longshoreman. During 1906 he had been employed by the Ward line, and since that for different contracting stevedores. He was, therefore, chargeable with notice that the hatchways in the underdecks are generally left open while the ship is in port. (Andersen v. New York & Cuba M. S. Co., supra. See The Saratoga, 87 Fed. Rep. 349, and cases cited.) The darkness in this between-deck was obvious to the plaintiff from the fact that the ship’s lights there were each directed into the hatchway being worked.

Mo breach of duty by the defendants appears (Droge v. Robins Co., 123 App. Div. 537), and, on the facts now shown, plaintiff was himself negligent.

Hence, the judgment should be reversed on the law and on the facts, and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

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