
    Lewis Droge, Respondent, v. John N. Robins Company, Appellant.
    Second Department,
    January 10, 1908.
    Master and servant —negligence — Employers’ Liability Act — negligent act must.be one of superintendence — injury by fall through ship hatchway —■ no liability for acts of superintendent employed by third person. *
    In order to hold a master liable under the Employers’ Liability Act, it must he shown not. only that the negligence was that of one exercising superintendence but that he was engaged in an act of superintendence at the time.
    The plaintiff, whose employer had detailed him to work on a steamship owned by other- parties under the direction of the chief engineer of the ship, having descended into the hold, which was dark, volunteered tó go to the engine room . • for lamps. While so doing he fell through an open hatchway and was injured. ■ It was shown that the plaintiff had had twenty-five years! experience in similar work', and there was- no evidence that the person directing the: work had. any control over the hatchways or any authority to order them closed. On all-' the evidence,
    
      Held, that; assuming the person directing' the work' to ha ve been' the superintendent of the defendant, it was not show-n that he was guilty, of any neglect in superintendence, and that the plaintiff was not entitled to recover under the Employers’ Liability Act;- •
    That, in any event, the person superintending the-work not being- in the employ of the defendant nor subject to its.control, his negligence was hot chargeable to the* defendant under the Employers’ Liability Act-, which covers only the negligence of superintendents in the service of the defendant. -,
    Appeal by the defendant; the John ÜSL Robins Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the-27th day of June,-1907, upon the verdict of a jury for $12,000, and also from an order entered in said clel'k’-s' office on -the 1st day of July, 1907,' denying the defendant’s motion for a new trial made upon the minutes.
    
      L. Sidney Carrere, for the appellant.
    
      Frederick S. Lyke, for the respondent.
   Woodward, J.:

The defendant is engaged in the business of making general, ship repairs, and'has its plant at what is known as the Boston Dry Dock, In the month of January, 1905, the' defendant had in its-employ Lewis Droge, the plaintiff, William White ;and John Kelly as machinist’s helpers. _ The steamship- Finance had suffered damages from a fire on' board.- She was owned by the Panamá Railroad Company,, and had been moored alongside of t|ie defendant’s wharf,; where she had for some-time been undergoing repairs. The defend-^ ant had been engaged in doing the engine work in such repairs, while other independent contractors were engaged in other work, and all of the. timé that, the steamship remained at this dock shé was in charge of the officers and crew of the ship; -The defendant had practically completed its work on the engines on the 1st of January, 1905, and On the fifth day of that month the Panama Railroad Company made a request in writing of the defendant that it should supply three men to work under the direction of its chief engineer. This work was no part of the work for which the defendant was under contract; it was work which the Panama Railroad Company desired to have done to fit the ship for navigation, and it was work which was to be done under the direction of its own chief engineer. Droge, White,and Kelly were directed by one Simms, a •foreman of the defendant, to report on board the steamship and to do whatever they were directed to do by the chief engineer. • The plaintiff had had twenty-five years’ experience in similar lines of work; for two years had been a machinist’s helper, doing all kinds of work in and about steamships. -The plaintiff, with the other men, worked under the directions of the chief engineer or his assistant for several weeks, and up to the day of the accident here complained of, on the 31st day of January, 1905. At that time one Garrett was the assistant engineer, and was engaged in directing the work of the plaintiff and his fellow-laborers. Garrett, White and Kelly arrived at the ship a little earlier than the plaintiff, and the two latter were told to get lamps in the engine room, where there was a supply of five or six lamps, and to go witli Garrett to the orlop deck for the purpose of thawing out some water pipes leading from the water tank. The orlop deck is the one nearest the water line, and Garrett, White and Kelly, in reaching the place, were obliged to pass down through a hatchway by means of a perpendicular ladder, which landed them on the orlop deck. Arriving upon this deck there were no covers on the hatch at the foot of the ladders, the hatchways being around on the back side of the ladders as they came down. It was dark on,the orlop deck, but the lights carried by Garrett and White were sufficient to show them that the hatchway was open. The plaintiff on arriving at the ship went to the engine room to change his clothes, and while there met Kelly, of whom he inquired where the men were at work, and was told, Down the hold; come ahead down.” Plaintiff followed Kelly down the ladder to the orlop deck and went over to where White, Kelly and the engineer were working. Some one, it does not appear who, said, “ Get some more lamps,” and the plaintiff responded that he would get them, and while attempting to reach the ladder, down which he had just passed, he stepped into the open hatchway, receiving the injuries for which he has been awarded a verdict in this action.

The negligence relied upon, if there was negligence of an action, .able character, is concededly that of Garrett, the assistant'engineer of- the steamship, in the employ of the Panama Bail road Company, and the defendant’s liability is based upon the proposition that Garrett was its superintendent under the provisions of the'Employers’ ■ Liability Act. It is important at the outset to get an idea of just what constituted the proximate cause of the accident, for whatever of uncertainty originally surrounded the question of the scope of the Employers’ Liability Act, it is now established that in order-to hold the employer liable, it must be shown not only that' the negligence was that of one exercising superintendence, but that he was, engaged in an act of superintendence at the time. (Lowrey v. Huntington Light & Power Co., 121 App. Div. 245; Guilmartin v. Solvay Process Co., 189 N. Y. 490, 494.) There is no suggestion that there was any defect, in the condition of the ways, works or machinery connected with or -used in the business of the employer,” as enumerated in section 1 of chapter 600 of the Laws of 1902, and it cannot be said that the master has given the servant an unsafe place in which to work when lie has sent him aboard a ship in which none of. the ways, works or machinery are' in a defective condition, and where the same is in charge of the officers and crew of such ship, and there is no reason to suppose that it contains any defects' which are not open.and obvious, and which are common to ships of the character of the one in question. The proximate cause of the accident was undoubtedly the fact that this' hatchway was open .on the orlop deck, and the so-called negligence of the.defendant, through its alleged superintendent, Garrett, must be based upon- the fact that Garrett, who had preceded the plaintiff, knew that the hatchway was open and did not close the same or give warning that it was open. It should be remembered that the ship was in the control of the officers of the Panama Bailroad Company, or the officers of the ship. So far as the evidence goes, the hatchway may have been open for the purpose of enabling the other contractors to do their work or it may have been open for the purpose of storing cargo or coal.of supplies, in the hold of the vessel. Certainly the evidence does nol show that Garrett had any control over the hatchway, or that it was customary of^roper, under ordinary circuznstances, to have a hatchway on a lower deck of a vessel of- this character closed. This was zrot the case of a passenger falling through an opening in an upper deck; it was of a znan of large experiezzce working in and arouzzd steaznboats, • engaged in znalcing repairs, knowing that othei's were at work upon the boat, knowizzg that it was dark, and that there were hatchways which were liable to be open, and if there was any zzegligence on the .part of Garrett it was that he, knowizzg of this opening, did not "warn the plaintiff or close the hatchway. But Gai’rett had beezi there but a few zninutes; the work to be done was not apparently of a lozzg duration; he had seen the hatchway with the aid of his light and that carried by White, azzd there is nothing to show that in calling for znore lights he addressed lziznself to the plaintiff, or that he knew that the plaintiff was without a light, or that he had not seen .the hatchway in comizig down. Indeed, it may be questioned whether Garrett knew that the plaintiff was there at all, and.as to the other two, who had seezi the open hatchway and knew that it was not closed, he owed no duty so far as we are able to discover. Clearly it was not the duty of the znaster,'after furnishing a reasonably safe place izi which to perforzn his services, to precede the plaintiff down every ladder, and upon evezy dark deck, and to see that thezn were zio opezi hatchways. Hatchways are necessary to the usefulness of ships; they are, of necessity, open at times, and- there is no evidence in this case to show that this hatchway was not necessarily open, or that Garrett had-any azzthority to close it, or'to order it closed. . The fact that the deck was dark was as obvious to the plaintiff as to any one ; he was going for znore light when he znet with the accident, and it is zzot disputed that there were plenty of lamps in the engine room for the purpose, and if Garrett was the' defendant’s superintendent, then it zuay be fairly said that the master, in having these lamps available, had dischaz-ged its' duty in this respect, for Garrett had concededly directed the men to take the laznps in the engine roozn for the purpose of performing this work. (McConnell v. Morse I. W. & D. D. Co., 187 N. Y. 341, 346.) How can it be said, therefoz-e, that Gaz-rett, assuzning him to .have been the superintendent of the defendant, was guilty of any neglect in supez-infendence % He certainly was not the superizitendent of the ship as the place for the plaintiff to work; he was'at most in chargHpF ‘these three men, directing them as to the work to be done, End as the defendant had -not-delegated to him any superintendence of the ship as a whole, how can it .be said that he was negligent in any matter of superintendence in failing to close down a hatchway some fourteen feet from the point where an incidental job of thawing out a water pipe was under way ? Obviously no such duty was imposed upon the master, and the master had not volunteered to furnish a superintendent for any -such purpose, and under the facts of this case there would be no liability on the part of the master, even though Garrett was its superintendent.

But Garrett was not the defendant’s superintendent within the meaning of the Employers’ Liability Act: lie was not in the employ of the defendant; was in no wise subject to the control of the defendant, and legislation has not yet reached the point of imputing negligence where there is not at least some measure of con-. trol on the part of the one who is to be held liable. The language of the statute, when read in connection with the purposes of the act, is not capable of such a construction as the plaintiff seeks to place upon it. The provision is: “Where, after-this act takes effect, personal injury is caused to an employee who is himself in the exercise of due care and diligence at.the time: * * * 2. By reason of the negligence of any person in the service of the ' employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person'acting as superintendent with the authority or consent of. such employer,” the employee shall be given the additional right of action. The effort to make this provision reach out and embrace Garrett, the employee of the Panama Railroad Company, in charge of certain repairs being made by the latter company in its own behalf with workmen furnished by the defendant, as the superintendent of the defendant, shows to what an extent enthusiasm in behalf of an unfortunate client may carry counsel and even the,court. The primary liability of the employer for the negligence of a superintendent is limited to “ any -person- in ■ the service of the employer,” and no fair construction of the statute could be made to cover any other case than that of a person in tlie service of the defendant. If the defendant had been doing the work-under its contract, and the work liad been such as to require the services of a superintendent in the sense in which that word is used in the statute, and it had permitted Garrett to come in and act as such superintendent, and the accident had been caused by his negligence in respect to a matter of superintendence, it may be that the court would be justified in holding that he was in the service of the defendant, even though he received his pay from the Panama Railroad Company, but no such state of facts exists here. Garrett was iiot in any possible sense in the service of the defendant; he was in the service of the owners of the ship; he was in charge of work in behalf of his own employer, and the plaintiff, while in thé general employ of the defendant, was at that, time in the special employ of the owners of the ship. Under such -circumstances there was certainly no liability on the part of the defendant to the plaintiff in this' action, and the judgment should not be permitted to stand.

The judgment and order appealed from should be reversed, with 'costs.

Jenks, Hooker, Gaynor and Hiller, JJ., concurred.

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