
    Eldridge v. Atlas Steamship Co.
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    1. Master and Servant—Negligence of Master—Seamen.
    Plaintiff, a seaman, while operating a steam-winch under orders of his superiors, received a severe injury by his hand being caught in exposed cog-wheels. The noise caused by the winch prevented one operating it from hearing orders, and he was obliged to watch the person in charge of the work, and regulate the use of the winch from motions of the hand. There were other winches on the vessel, which had been in use about 12 years, and which were covered and comparatively noiseless. No accident had previously happened from the winch by which plaintiff was injured. The hand of the operator was not required to go nearer the wheels than from 6 to 10 inches. Held, that there was' evidence sufficient to be submitted to the jury of defendant’s negligence in not rendering the apparatus secure, and also of proper care on plaintiff’s part.
    2. Evidence—Relevancy.
    At the trial of an action for an injury to plaintiff’s hand frombeing caught in exposed cog-wheels of a winch which he was working, a witness was asked whether a frame shown in a photograph of a different winch was a protection against the cog-wheels to the men working it. Meld, that the question was properly excluded as not pertinent.
    3. Same—Materiality.
    At the trial of an action by a seaman for personal injuries received in operating an alleged dangerous winch on a vessel upon which he had shipped and signed, articles, a witness was asked whether a man could not leave a ship after he had signed articles, in case he did not like the looks of her. Keld that, plaintiff not having attempted to leave, the answer was properly excluded as unimportant.
    
      4. Same—Opinion—Conclusion of Witness.
    Whether a seaman, after the loss of three fingers of the left hand, is competent to perform the duties of quartermaster, cannot be proved by the opinion of a witness.
    6. Master and Servant—Assumption of Risk.
    At the trial of an action by a seaman for personal injuries received in operating an alleged dangerous winch on defendant’s ship, an instruction that, if plaintiff had an opportunity of seeing the winch before the ship sailed, he could not recover, was properly refused, as, if he did not acquire knowledge of the risk, the opportunity to discover it would not justify a verdict for defendant.
    6. Damages—Excessive—Personal Injuries.
    Plaintiff, a seaman, while operating a winch on defendant’s vessel, sustained a severe injury to his left hand, resulting in the loss of three fingers. Held, that a verdict for S3,750 damages therefor was not excessive.
    Appeal from circuit court, New York county.
    Action by Alfred Eldridge against the Atlas Steamship Company, (Limited,) to recover damages for personal injuries received by plaintiff while serving as a seaman on one of defendant’s vessels. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Wheeler, Cortis & Godkin, (Everett P. Wheeler, of counsel,) for appellant. Jacob Fromme, for respondent.
   Daniels, J.

The plaintiff sustained a severe injury to his left hand, resulting in the loss of three of his fingers, in operating a diagonal steam-winch on board the defendant’s steamer Alvena, on the 23d of November, 1886, at Aspinwall. He shipped as a seaman, and signed articles prior to the commencement of her voyage, at the city of New York, and was ordered, on the morning of the day of the accident, to attend to the working of this winch, in shifting cargo, and he obeyed, as it was stated he was bound to do, that order. There were three winches used upon the steamer for similar objects, and the other two were horizontal and covered, and not liable to accidents of the nature of that encountered by the plaintiff. These others had been in use for about 12 years, and were comparatively noiseless. This diagonal winch had, preceding the improved wfinch, been in extensive use. but had given place to the others when changes were made. It consisted in a lifting apparatus operated by a steam-valve, and a large and small cog-wheel; and to reach the valve, to control the motion of the winch, the person operating it seems to have been required to extend his hand over the wheels to the valve. When the winch was in motion, the noise caused by it was so great as to prevent the operator from hearing orders given by the person in charge of the business over him, and he was obliged to watch that person, and regulate the use of the winch from different motions of his hand. The evidence of the plaintiff, which was corroborated by that of other witnesses, is that he was rendering his services in this manner, and was extending his hand across the winch, to reach and operate the valve, when his fingers were caught between the wheels, and this injury received. There was no controversy as to the fact that this winch was uncovered, or that the plaintiff received his injury while he was engaged in operating it. Evidence was given that it was unsafe for want of being covered where the wheels were exposed, and, on the part of the defendant, that no accident from it had previously happened, and that the hand of the operator, extended to reach the valve, was not required to go nearer than from 6 to 10 inches of the wheels.

At the close of the plaintiff’s case the defendant’s counsel moved for a dismissal of the complaint for want of evidence of negligence, and also for the further reason that this was a risk of the plaintiff’s employment, and the accident resulted from the plaintiff’s own want of care. At the close of the case the motion was renewed, and the defendant excepted to each denial on each occasion. Upon a previous trial the complaint was dismissed, but that was set aside and a new trial ordered by this general term, whose decision was a sufficient authority for the submission of the case to the jury. 8 N. Y. Supp. 433. The further evidence given by the defendant was added to that which had previously been taken, but it was in no respect so controlling as to require the points in controversy to be withheld from the jury. There was accordingly no error in the denial of these motions. The plaintiff occupied a position in which he was bound tv obey the orders by his superiors, and, in undertaking to operate the winch in the condition in which it was, he had reason to believe it could be safely done. Conñdence of that nature ■ft'ould naturally be inspired by the order which was given, and when it emanated from a person whose order the subordinate has bound himself to-obey, as the plaintiff, as a seaman in the service of the steamer, had become bound, that cannot fail to be a fact of importance in the inquiry involving the care of the person rendering the service. And while the defendant was-not bound to obtain and supply for this service the best possible apparatus, it was bound to render that which was to be used reasonably secure and safe, and what had been done to secure that end with the other two in use was suggestive at least of the propriety of adding that, or a similar or equivalent safeguard, to this diagonal winch; and, as it had failed to do that after acquiring the knowledge supplied by the other winches, and which it must, from their employment, be assumed to have obtained, there was sufficient evidence to render the case one for the jury on each of these controlling inquiries.

Photographs were produced upon the trial, and a photograph of winch number 2, which was not the winch in question, was shown to the witness Burrows, and he was then asked whether the frame on the left-hand side was a protection against the cog-wheels to the man standing there and working the winch. The witness was not allowed to answer the question, and the defendant’s counsel excepted to this ruling. But from the form of the question, it cannot be determined that it had any pertinency to the case. It might or might not, for all that appeared, have been a protection for that .winch, without shedding the slightest light upon either issue in the action. The same witness was asked whether a man could not in this country leave the ship after he had signed articles, in case he did not like the looks of her, and an exception was taken to the ruling excluding the anwer. Whether he could leave or not, was not important, for the plaintiff did not attempt to leave. He was not bound to do so even if he had. seen the uncovered condition of this winch before the steamer sailed, which he denied having done. Tiie answer, even if it had been favorable,would have been wholly unimportant, for the reason that he remained, and subordinated himself to the orders which were given him. Whether he was competent to perform the duties of quartermaster after this injury to his hand was not to be determined by the opinion of the witness who was interrogated as to that fact. That depended upon the services to be performed and the apparatus to be used, which could have been clearly stated and described, and in that manner brought within the comprehension of the jury, who would then have been able-to infer what his ability was,—as well, certainly, as the witness; and, when that may be done, the fact is not one to be proved by the expression of an opinion, which was all that was asked of the witness.

Heither was there error in the refusal to charge that, if the plaintiff had an opportunity of seeing the winch before the ship sailed, he must be assumed to have sailed with the knowledge of its condition, and cannot recover for an inj ury caused thereby. This request presented a clear non sequitur, and also placed the plaintiff’s right to maintain the action wholly on the opportunity to see, whether he had seen or not. But, without acquiring knowledge of the fact itself, the opportunity to discover it would not justify a verdiet for the defendant. If he entered the employment of the ship with knowledge that the winch was uncovered, then the court, at the request of the defendant’s counsel, did charge that he could not recover, but the verdict must be for the defendant; and that was going fully as far as either the law or the facts required’the court to interfere for the exoneration of the defendant. The action was one for the jury, and neither of the exceptions can be sustained, nor was their verdict of $3,750 in any degree excessive. The judgment and order should be affirmed. All concur.  