
    James O’Connell, Respondent, v. John Clark and William Clark, Appellants.
    
      Master and servant — direction to a longshoreman to occupy a dangerous position in unloading a vessel — compelling him to do so — liability of the employer.
    
    An experienced longshoreman, employed in the hold of a vessel discharging a cargo of bales of jute, injured by a bale of jute falling upon him, while engaged, by direction of his employer, in pushing a draft which had caught under the coamings of the hatch (by reason of which he was placed in a more dangerous place than if he had occupied a position at which he could pull the draft towards him), is not entitled to recover from his employer the damages resulting from such injury.
    
      Semble, that it would be otherwise had the employer by violence forced him into such position.
    Appeal by the defendants, John Clark and another, 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 15tli day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1897, denying the defendants’ motion for a new trial.
    
      Perry D. Trafford, for the appellants.
    
      Thomas P. WieJces and George W. Bristol, for the respondent.
   Cullen, J.:

This action is servant against master, to recover for damages resulting from personal injuries. The parties are longshoremen, the plaintiff being an employee. The plaintiff had pursued his occupation for some ten years and was fully cognizant of its risk and skilled in the proper prosecution of the work. On the occasion of the accident the parties were engaged in taking'a cargo of jute, packed in bales, out of a ship. The work was being done in the lower hold. The plaintiff had made up a draft of four bales and given the signal to the gangwayman to hoist it out of the hold. The draft caught under the coamings of the hatch. According to the plaintiff’s story he was pulling the draft towards the middle of the open hatchway, so as to clear it from the coamings, when the defendant, with an oath, told him to go behind the draft and, at the same time, forcibly thrust him into that position. Almost immediately thereafter a bale of jute, from the cargo still in the hold, fell upon the plaintiff, inflicting injuries which necessitated an amputation of his leg. The defendant denied both that he ordered the plaintiff to go behind the draft, and also that he applied any force to him. The complaint does not allege that the defendant used any violence or force to the plaintiff, but charges him with negligence in directing him to work in an unsafe place. On a previous trial the plaintiff recovered a verdict, which was reversed on appeal by this division of the court. (6 App. Div. 33.) I think the principles which govern the determination of this case are comparatively clear and simple. It is the duty of the master to use reasonable care to provide the servant with a safe place to work, with safe and suitable appliances, and to carry on the work in a reasonably safe manner. The present case does not present the question of a safe place. Of course, in one sense, the place at which the bale fell upon the plaintiff and' injured him was unsafe. In the same sense, a place in the strongest and most substantial factory would be unsafe if a missile from the outside should enter the factory and strike there. But the principle of a safe place does not apply where the prosecution of the work itself makes the place and creates its dangers. Still less is there any question here of an unsafe appliance. If any imputation of fault can rest on the defendant, it relates strictly to the method of the prosecution of the work itself, as distinguished from the matter of place to work or appliance with which to work. Most of the dangers of the plaintiff’s employment were obvious. He had long experience in the work; he knew his employer was in no manner connected with nor responsible for the manner in which the ship was loaded or its cargo stored. In taking out the cargo there might be some danger of it falling down upon the workmen, the same as of earth falling down where a laborer is digging into a bank. This danger would vary and be greater or less, depending on the character of the cargo and the manner in which it is stored. While goods were being elevated through the hatch there was the danger of the draft or part of it getting loose and falling down. There is no evidence to show that pushing the draft towards the hatch was not an ordinary and proper manner of working, except the testimony of the plaintiff, to the effect that he always pulled- the draft and did not push it. It may be that, until the cargo was taken out for some space around the hatch, the danger that part of the cargo might fall upon the workman who, from his position, would be unable to observe it, would be greater than the risk of some . article falling down the hatchway. The plaintiff claims that such was his judgment, and the verdict of the jury has probably established the fact. But if this were so, the risk was obvious and as - palpable to the plaintiff as it was to the defendant. There are cases where, in the use of machinery, or in the prosecution of a work involving some degree of technical knowledge, the servant cannot be presumed to know the risks and dangers as well as the master, and in such cases the servant can rely on the master’s superior knowledge and his assurance of the absence of danger. This is also true where the danger proceeds from a part of the work or the character of appliances which the servant’s labor does not call him ■in contact with or make him conversant with their condition. A bricklayer might not be supposed to be familiar with the thrust of the roof of the building in the erection of which he was engaged, or the sufficiency of the walls and piers to resist the strain which was imposed on them. But he would know, as well as his master, the chance of a wall laid up dry, without mortar, tumbling down. In the present case every danger of the situation, and the proper . way of avoiding those dangers, so far as it was practicable, were as plain and familiar to the plaintiff, with his experience, as they were to his master; nor was there any duty to make an inspection by other servants cast upon the master. It was the plaintiff and his fellow-workmen who should know and apprise the master if any •unexpected dangers had appeared in unloading the vessel. Therefore, a mere direction from the master to go behind the draft and push it would not have relieved the plaintiff from the charge of con- ■ tributary negligence or rendered the master liable. This necessarily follows from the concession of counsel for respondent, who says: “ If the plaintiff had voluntarily gone around behind to push the draft clear of the coamings, it is conceded that he would have no cause of action; but the real situation is very different. The plain- , tiff was deprived by the acts of the master himself of the opportunity to exercise any volition whatever.” We think that, if the plaintiff went voluntarily to the place in which he was injured, whether by direction of the master or without direction, the result is the same — he cannot recover.

The plaintiff’s testimony, if credited, however, showed more than a mere direction by the master. It was to the effect that the master, by force and violence, and against the plaintiff’s will, had thrust him into a place of danger. If the complaint had properly charged this act, and the cause had been submitted to the jury on such an issue, a recovery could be upheld. But this was not the theory on which the case was presented to the jury for determination. It went to the jury on the theory of the defendant’s negligence in giving improper directions to the plaintiff, and it was stated that no reliance was placed on the violence or force used by the defendant other than as intended to emphasize or make clear his direction. For the theory on which the case was submitted to the jury the plaintiff’s counsel alone is responsible. In our view the liability" of the defendant can be sustained on no such ground. The question of his liability depends on the fact whether he forcibly thrust the plaintiff into danger. If he did not, he was not liable. This issue has not been passed upon. The court was requested to charge that, “ If the jury believe that defendant ordered the plaintiff to go behind his draft, but did not push or shove him, their verdict should be for the defendant.” This the court refused, thus, in our opinion, taking away from the jury the only issue on which the liability of the defendant could be predicated.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred, except Bartlett, J., not voting.

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