
    Thomas A. Casey, an Infant, by Frank J. Casey, His Guardian ad Litem, Respondent, v. Lehigh Valley Railroad Company, Appellant, Impleaded with Columbia Engineering Works
    Second Department,
    October 9, 1908.
    Master and servant — injury to employee of contractor repairing tugboat— liability of owner — evidence raising issue as to ownership — proximate cause—verdict not excessive.
    Where a tugboat upon which the plaintiff was injured bore upon its smokestack the insignia of the defendant railroad, being the same design displayed by the defendant upon its office windows, train schedules, stationery, etc., there is ■evidence sufficient to entitle the jury to say whether the boat belonged to. the defendant, although the latter has put in evidence a bill of . sale of a boat to another corporation where the description therein does not conclusively show that the boat sold was the one upon which the plaintiff was injured.
    Although the letters “L. V.” are equally consistent with" the ownership of the ' defendant Lehigh Valley Railroad-or the Lehigh Valley Transportation Com- ' pany, to which the defendant claims to have sold the boat, there is no presumption that one corporation will use the same insignia as another and an issue is presented for the jury, especially where the defendant, knowing all the facts, fails to disclose them.
    Under such evidence it is not error to leave it to the jury to say whether the defendant railroad was responsible for the control of the boat while under repair.
    Although the boat was being repaired by another corporation, an .employee of the latter was not a mere licensee, so that the owner owes him no higher duty than to refrain from wantonly injuring him, but on the contrary the employee was on the boat on the irivitation of the owner, and it owed him the duty of reasonable care.
    When it appears that in a narrow passage on the side of the. cabin of the boat the defendant maintained a manhole covered with a defective covering liable to turn over when stepped upon, and that the plaintiff, while under the direction of his foreman and on a lawful errand, stepped upon the same and was injured, the owner’s negligence is for the jury.
    Where it appears that the manhole was covered with an open grating, defective in that one of the lugs was worn or broken so that the grating could turn over if stepped upon, the defect in the grating is the proximate cause of the accident rather than the absence of a solid covering which the 'testimony shows was designed to be used at sea for the purpose of preventing water from flowing into the manhole.
    Moreover, if the removal of this solid cover be considered to he the proximate cause of the accident, the defendant may be found, negligent in permitting it to remain off, where it appears that the covering has been removed for at least, four days.
    Where the plaintiff fell astride the grating and was so injured as to demand surgical aid indefinitely, and there is evidence that the injury will be permanent in some respects, a verdict of §7,500 is not excessive although there be no evidence of permanent impairment of earning capacity.
    Appeal by the defendant, the Lehigh Valley Railroad Company, 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 22d day of -November, 1907, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Allan McCulloh [ William Woart Lancaster with him on the brief], for the appellant.
    
      F. A. McCloskey [Richard A. Rendich with him on the brief], for .the respondent.
   Woodward, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, the action being dismissed as against the defendant the Columbia Engineering Works upon the trial. The plaintiff in 1904 was an office boy in the employ of the Columbia Engineering Works, which company was engaged in making repairs upon a tugboat said to belong to or to be in the control of the defendant the Lehigh Valley Railroad Company; The tugboat was tied up to the dock of the Columbia Engineering Works, and there was evidence from which the jury might draw the inference that this boat was in the charge of its regular engineer, and that the repairs which were being made by the Columbia Engineering Works were made under the direction of some one representing the defendant railroad company. The work had been in progress some considerable length of time when the plaiiitiff was sent by the foreman of the Columbia Engineering Works to get a pump which Was used for pumping the water out of the hold of vessels. The pump was in the engine room of the tugboat which was undergoing repairs, and the plaintiff, while thus engaged, stepped upon the covering of a manhole, which turned up on its edge and the plaintiff fell astride of it in such a manner as to produce serious and more or less permanent injuries. The jury found a verdict against the defendant railroad company for $7,500; the defendant appealing from the judgment entered upon such verdict and from the order denying a motion for a new trial;

The defendant contends upon this appeal that there is no evidence that at the time - of the accident the boat on which the accident occurred was owned by the Lehigh Valley Railroad Company. The defendant put in evidence a bill of sale Of a boat known as the Mercedes to the Lehigh Valley Transportation Company, and it was claimed that this was the boat on which the accident occurred, and it is insisted that this ownership in the Lehigh Valley Transportation Company having been shown, the ownership must be pre- ■ sumed to continue until the contrary is shown. This would, no doubt, be the rule if it was once conclusively established that such ownership existed. But in the case now before us the boat described in the bill of sale does not conclusively appear to be the same boat which is here under consideration. There are certain elements in the description which do not appear to have existed in the boat which was undergoing repairs, and there was evidence which tended to show that the boat was, at the time of the accident, owned or in the control of the Lehigh Valley Bail road Company. The evidence on the part of the plaintiff, in which the witnesses insisted on characterizing the boat in question as the Lehigh Valley tugboat, was, on motion of defendant, stricken from the case, but there was evidence that the boat bore the insignia upon its smokestack of the same design which was displayed by the defendant upon its office windows, its train schedules, stationery, etc., and we are of the opinion that this was sufficient to send the case to the jury upon this question. It is "urged that the initial letters L. V.” and the insignia were equally consistent with ownership in the Lehigh Valley Transportation Company, but there is no presumption that one corporation will use exactly the same design as another, and, if such were the case, it was an easy matter for the defendant to have established the fact. It is not for a corporation, with all of the facts fully known to it, to hide behind the complications which exist in our complex corporate systems. When a plaintiff has shown evidence from which the inference of ownership or control may be drawn, it is proper that the jury be permitted to determine the question, even though the evidence should lack in conclusiveness, for it is within the power of the corporation to disclose the true state of facts if it is so disposed, and a failure to do so justifies the inference of ownership or responsible control.' What has been said upon the question of ownership is equally applicable to "the matter of responsible control, and we are not prepared to hold that there was any error in submitting the question here under discussion.

It is suggested, however, that the plaintiff was a mere licensee, and that the defendant railroad company owed him no higher duty than to refrain from wantonly injuring him. We are of opinion that this proposition is untenable. The ColumbiaEngineering Works with its employees was invited upon the boat for the purpose of making repairs. It was not necessary that there should be an invitation to the plaintiff particularly; he was employed by the company making the repairs, and he was invited there, in common with other employees of the company, on any lawful mission connected with' the work. The defendant railroad company, under this invitation, owed liim the duty of reasonable care, and where the evidence showed that on this tugboat, with narrow passages on either side of the cabin over the engine room, the' defendant-maintained'a manhole covered with "a defective covering,-so that it was liable to turn over when stepped upon, and that the plaintiff, under directions - of his foreman, was engaged in a lawful errand and stepped upon this manhole covering, resulting in the accident, a question within the province of the jury was presented. The evidence showed that this manhole covering was an open grate, with four lugs or prongs, which fitted into sockets around the edge- of the manhole, and that one of these lugs was'worn- or broken in such a manner as to make it unsafe to step upon, and that this-condition had existed for a considerable length of time. It appeared thatthere was an extra solid cover, which at the time-was removed and placed a considerable distance away, and the defendant 'urges that it was the removal of this solid cover which was the proximate cause of the accident. There was,. however, testimony thatthis solid cover was for use when the boat was at sea, for the purpose of preventing the water from flowing into the hold when the sea overflowed the bulwarks, and the jury might very well have found that this solid cover was not for use under the circumstances then existing. Ho one removing the solid cover and seeing this grating over the manhole. Would have any .reason to expect that it was dangerous unless lie knew of the'defective condition, and it can hardly be said as a matter of law that the removal of this solid cover, if it was ever to be used except at sea, was the proximate cause of this accident. If the grating had been in condition it was as safe as the solid cover, and the defendant maintaining the gfating, thus holding out the suggestion that it was the safe and proper covering, is not in a position to avoid responsibility for the accident because there was another cover which might have been over the place but was not,It appears, at least by inference, that this cover had not been ovér' this hole.for several days, for one witness sweam that he had observed the condition of the grating for at least four days before the accident, and this would have been impossible if the solid cover had been over it. If the removal of this covering was the 'proximate cause of the accident and it had been removed long enough so that the defendant, in the exercise of reasonable care, should have known the fact and comprehended the danger, then it was negligent in permitting it to remain off, and the liability wuuld be the same. We are of opinion, however, that the proximate cause lay closer than this; that it was the condition of the covering which the defendant actually maintained as a practical covering for this manhole while in port.

We have examined the matters further urged upon the attention of this court, but without discovering reversible error. The ver diet, while of considerable amount, is not so far excessive as to warrant this court in interfering under the modern rule in such cases. There is some evidence that the injuries, which have been very painful, will be permanent in some measure at least. It is true that there is no evidencé of a permanent impairment of earning capacity, but injuries which must continue to demand surgical attention indefinitely are deserving of compensation, and the evidence in this case is that the plaintiff must be operated upon once or twice a year to preserve him from stricture.

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

Present—Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  