
    Michael Kennedy, Appellant, v. John N. Robins Company Respondent.
    Second. Department,
    January 24, 1913.
    Master and servant — negligence — injury to laborer by falling into hold of ship — when flooring temporarily torn up not a “way ” furnished by the master —evidence —failure to object until after answer given.
    Action to recover for personal injuries. The plaintiff, an experienced laborer, was ordered to go to the hold of a ship in dry dock to clean the top of water tanks. As the plaintiff knew, access to the hold was afforded by grab irons affixed to a shaft alley, but the plaintiff did not use them because they were temporarily covered with planks which had constituted the flooring over the tanks but which had been taken up temporarily in order to give access to the hold. He attempted instead to cross over the planks,' which gave way, precipitating him into the hold. On all the evidence,
    
      Held, that the plaintiff was not justified in assuming that the planks were a “way” to his work and that there was no obligation upon the master to make them reasonably secure as such way.
    An objection which is subsequent to an answer is too late; the remedy is a motion to strike out the answer.
    Appeal by the plaintiff, Michael Kennedy, from a judgment of the Supreme Courj; in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of April,
    
      1912, upon the dismissal of the complaint by direction of the . court at the close of plaintiff’s case on a trial at the Kings County Trial Term. 1
    
      Arthur J. Levine, for the appellant.
    
      Edward P. Mowton, for the respondent.
   Jenks, P. J.:

The action is brought for negligence, by servant against' master, and the former appeals from the judgment entered upon his dismissal at the close of his evidence. The servant, an experienced laborer, was ordered to go to the hold of a ship, in drydock at the master’s shipyard, to clean the tops of ballast or water tanks. He and his fellows descended a hatch by a ladder from the upper deck to the top of the shaft alley, a sort óf tunnel. That top was eight feet above the top of the tanks. Access therefrom to the hold, as the plaintiff well knew, was afforded, by Certain grab irons fixed to the shaft alley. The plaintiff did not use them for the reason that he found them covered by planks, but undertook, from necessity he contends, to cross over those planks so as to reach and then to use the battens to go down to the tanks. The planks gave way under him, and he fell into the hold to his injury. There is proof that one of the planks was defective. These planks were the flooring over the tanks which had been taken up so that the plaintiff could clean the top of the tanks. There were four stanchions on either side of the shaft alley, about eight, feet "therefrom .towards the wings of the ship. Two of the planks had been lashed to two of the stanchions, and then had been extended therefrom to the top of the shaft alley so as to support the other planks which had been placed thereon, parallel to the shaft alley.

The plaintiff had no reason to assume that there was.a way furnished by the master across these planks. For he knew that the usual means of access was by these grab irons. And he knew full well that these planks consisted of the flooring on the tanks that had been taken up and laid aside but temporarily. For his testimony is, “I saw a lot of planks that was raised off the tanks and put up there like as a bundle and put there for us to go under there to clean it.” Further, “ The men that took these up used a part of them to make a platform for the rest of them to get them out of the way.”- Again, ‘‘Those crosspieces were to hold up the rest of the planks and get them out of the way; they made a platform on which they could put the rest of them.” And plaintiff’s witness G-illen testifies: “These planks, these crosspieces, Were apart of the floor planking that had been taken up and lashed there for the purpose of piling these other planks on top of them. And ■when they would take down the other planks they would take down these crosspieces. And use all these planks back again on top of the tanks, I am sure about that.”

There is no proof of act or omission of the master that could have induced a person of ordinary care and prudence to conclude that the master had intended to provide a way across these planks. There is no proof of any direct invitation to make such a use. There is no proof that permits the inference ■ that there was any implied invitation. -The planks had been taken up recently from their place as flooring by a,gang of carpenters. The plaintiff testifies that this gang were “just getting through” when he went down, and again, “they were still at work when we went down.” There was no proof that the defendant or its representative was at or near this place, and consequently no proof that it knew that any one had attempted to cross over the planks. For aught that appears, the manner of putting aside these planks temporarily happened to cover the grab irons. The plaintiff testifies that there were about twenty or twenty-five of them. While the proof is not entirely clear, there is an indication that the piling of the planks did not fill up the shaft alley so as to necessarily cover the grab irons. Thus the plaintiff’s witness Maxwell, on cross-examination, says: “I was standing on the shaft alley; not on the alley itself. That was not covered with planks where I stood.”

I think that the plaintiff had no legal justification in assuming that a way to his work lay in part across this lumber, and that there was no legal obligation upon the master to make the planks reasonably secure as a way for the servant. (See Labatt Mast. & Serv. § 28 et seq.; Felch v. Allen, 98 Mass,

572.). In the words of Finch, J., writing for the court in Kern v. DeCastro & D. S. R. Co. (125 N. Y. 50), it was not negligence to omit a precaution applicable only to a situation which did not in fact exist.” (See, too, White v. Eidlitz, 19 App. Div. 256; Preston v. Ocean Steamship Co., 33 id. 193; Young v. Boston & Maine R. R., 69 N. H. 356.) The plaintiff cannot hold the master for a defective way in that the latter ordered the plaintiff to go down into the hold. There is no proof that when the order was given there was any obstruction of the grab irons. And if there were, there is not any proof that the master knew or legally should have known of such obstruction. Indeed, there is not any proof that he ever knew of it. The plaintiff followed upon the heels of the carpenters, who, as I have shown, had either just finished their work or were still about it when the plaintiff came to the shaft alley. There was no coercion put upon the plaintiff. (Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520; Miller v. Grieme, 53 App. Div: 276.) He testifies that he was neither in a hurry nor rushed.

I think that it was not reversible error to exclude the answer of the witness Devine to the question by the plaintiff whether any one was in the hold directing the carpenters. The objection was Subsequent to the answer; it was too late, and the remedy was a motion to strike out the answer. (Link v. Sheldon, 136 N. Y. 1.) Moreover, the witness was permitted thereafter to answer that/1 There was somebody at the head of that gang of carpenters, that was down in the hold.” And the inquiry was pressed no further. If the plaintiff had attempted to show that the master or his representative had invited plaintiff to cross over the planks, and had been prevented by' rulings of the court, another and a serious question would have been presented by the record.

I advise affirmance of the judgment, with costs.

Present — Jenics, P. J., Thomas, Carr, Woodward and Rich, JJ.

Judgment unanimously affirmed, with costs.  