
    James O’Connell, Respondent, v. John T. Clark and William Clark, Appellants.
    
      Personal injuries — duty of a master to provide a safe place for Ms servant—the burden of proof is upon the plaintiff.
    
    In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, it appeared that the defendant, a longshoreman of experience, was assisting in the removal from a vessel of a cargo of jute, the bales of which were arranged in tiers. In removing the jute three or four bales, constituting what was called a “draft,” were placed in a sling. A rope with a hook was then attached to the “draft” which the plaintiff would swing out from under the combing of the hatch into the open hatchway, from which point it was lifted by steam power to the deck.
    At the time of the accident the plaintiff had made up a “ draft” and had attached the hook, and as the “draft” was raised from the floor he stood in front of it pulling it out from under the combing of the hatch into the open hatchway, when one of the defendants, who was directing the work, caught him by the arm, and shoved him behind the “ draft,” and immediately after a bale of jute coming from behind, in the hold of the ship, rolled upon his leg and crushed it.
    The plaintiff based his claim for a recovery, not upon an assault nor upon defective machinery or unsuitable appliances, but upon the ground that the master failed in his duty, by putting the servant in a position where it was not safe, for the servant to work, and in a place where the master ought to have known it was not safe. As to the danger of the place, there was no evidence whatever showing the cause which made the bale roll down upon the plaintiff’s leg.
    
      Held, that the plaintiff was not entitled to recover;
    That, if the defendants were to be charged with negligence for thrusting the plaintiff into a dangerous place, it must first he established that there was a condition of affairs which made the place into which plaintiff was thrust more dangerous than that in which he had previously stood; which was not shown;
    That it was not proved that either place was apparently dangerous.
    Appeal by the defendants, John T, Clark and William Clark, 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 19th day of December, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 20th day of December, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    
      Perry D. Trafford and Rufus O. Catlin, for the appellants.
    
      Thomas P. Wickes, for the respondent.
   Hatch, J.:

This action is between master and servant. The case is somewhat novel in its facts, but the principles which control its disposition have been many times stated. Plaintiff was employed as a longshoreman, and at the timé of the injury complained of he was engaged in assisting in the removal from a vessel of a cargo of jute, and had been so engaged for about three weeks. His employment called him to remove the bales of jute from the tiers, as they were stowed in the hold of the vessel, and place them in slings, for lifting to the deck above. The bales were about four feet long and eighteen inches thick; three or four bales would be placed in a sling, and when made up was called a “ draft.” This draft was lifted by means of steam power to the deck above, and was accomplished by means of a rope with a hook, which was attached to the sling. "When the hook was attached a signal to hoist was given ; as the draft lifted plaintiff would swing it from under the combing of the hatch into the open hatchway and the bales would be lifted to the deck above. There were several other workmen engaged in the same occupation at different points in the hold, and each took turn in attaching the hook to the sling as the drafts were made up. Plaintiff had made up a draft, attached the hook, and, as it was raised from the floor, he stood in front of it, under the open hatch, pulling it out from under the combing, when the defendant John T. Clark, who was present directing the work, caught him by the arm, swore at him, shoved him behind the draft, and immediately after, a bale, coming from behind, in the hold of the ship, rolled upon plaintiff’s leg, and he sustained a compound fracture of the bones, necessitating subsequent amputation of the leg.

The allegations of the complaint were, in substance, that defendant directed plaintiff to go behind the bales and push the draft out, so that it would swing clear of the combings, and that in obedience to such direction, and without knowledge of danger, he obeyed the order and suffered the injury; that the place where he was directed to go was a place of danger, and that defendant was guilty of negligence in ordering him to go there without taking proper precautions to make the place safe. There was no allegation that defendant used any physical force in placing plaintiff in the position where he was injured, or that he committed any assault upon him at any time. At the close of the trial, however, plaintiff was permitted to amend his complaint to conform to the proof. For present'purposes we now regard the pleading as though it contained the allegation that defendant took plaintiff by the arm and shoved him behind the draft. Based upon this proof and the amendment, it is now argued that defendant was guilty of an assault upon plaintiff, and that in consequence thereof the former became liable for any injury which plaintiff sustained, whether the defendant had or had not violated any obligation he was under to provide a safe place for plaintiff to work. We do not find it necessary to decide this question in the disposition of this case, as the action is not for an assault, nor were the jury required to find upon that question as a condition of plaintiff’s right to recover. In the colloquy between the court and counsel, which followed the close of plaintiff’s proof upon this branch of the case, the court said : “ As I understand this case, it is not claimed' that the place was not reasonably safe for this man to do his work in, and this has nothing to do with the pulling up of the draft. Is there any claim of negligence except in respect to the witness’ claim that he was pushed in this position ? ”

“ Plaintiff’s Counsel.— That is our claim and the only claim.”

“ The Court.— That is, that the master failed to fulfill his duty to the servant, but put him in a position where it was not safe for that servant to work, and the master ought to have known it was not safe ; that is the proposition, as I understand it ? ”

“ Plaintiff’s Counsel.— That is it; yes, sir.”

“Defendants’ Counsel.— Then there is no claim as to the machinery being defective or the appliances unsuitable %

“■The Court.-—• ÜSTo'.”

It is thus apparent that the issue presented, extracted from the proof, as stated by the court and agreed to by the counsel, was the failure of obligation upon the part of defendant to provide a safe place for plaintiff to work. This involved the construction of the physical act of defendant as having no other or different relation to the issue than, perhaps, a mere emphasis of the oral direction to get behind- the draft, and tending to some extent to destroy plaintiff’s opportunity for voluntary action.- It clearly excludes any idea of an assault as a basis- of liability. When the application was made to amend, no suggestion of this character and no claim.was made that the issue was to be hi any respect changed from that stated by the court. And the latter, in the submission of the case to the jury, charged that this was the issue presented for their determination, and plaintiff’s counsel took ■ no exception to the charge in this respect, nor did he present any request to charge "which sought to raise the question that liability might be predicated as for an injury caused by an assault.

The case, therefore, is left for our disposition upon the question whether defendant failed in his duty to provide a reasonably safe place to work,' or directed the plaintiff to go into a place which he knew, of ought to have known, was dangerous. The- plaintiff was' an experienced longshoreman, had followed the business for ten years, and frequently before had unloaded cargoes of jute, . and had been at work in this vessel for the three weeks preceding 'the injury. The place where he was injured, and its condition, was the creation of himself and fellow-servants, and usually no liability exists upon the part of the master for an injury received under such circumstances. (Collins v. Crimmins, 11 Misc. Rep. 24; Smith v. Empire Trans. Co., 89 Hun, 593.)

There are some exceptions to this rule, as. where the master1 gives assurance that the conditions will not be changed during the performance of the labor, or where the master orders the workman into a dangerous place. The rule and its exceptions are -found stated in Kranz v. L. I. R. R. Co. (123 N. Y. 1); Cullen v. Norton (126 id. 1); Stuber v. McEntee (142 id. 200).

Assuming that the exception finds force here, does the proof warrant its application ? Defendant insists that there is no proof that the place where plaintiff, was pushed or directed to go was, in fact, unsafe, beyond the happening of the accident. Standing alone, the latter would not be sufficient. It is quite difficult to discover just what the condition was in the rear of plaintiff when he went behind the draft, or from what point or how the bale was dislodged which fell upon him. Counsel for respondent states in his brief.: “ The place into Which plaintiff was thus peremptorily ordered was directly underneath the tiers of bales which were being broken out.” I am unable to find this statement supported in the folios of the. testimony to which he refers for its support, or elsewhere in the case. Plaintiff’s testimony in this respect is, that when he was in front of the draft the bales were in front of him, and when behind the draft they were at his back. The witness Sullivan testified that he saw the bale rolling ; that it came from the wing in the middle or about foiv ward of where plaintiff was. We have much general testimony as to the dimensions óf the space in the hold, the corner where the man worked, and how the work was carried on. But what the condition was in the rear of plaintiff there is no testimony. How far the bales were from his back we have no proof ; how high the tier was is not shown ; how far away this bale was when it started to roll is indefinite to the last degree, and of what caused it to leave its place there is not a suggestion in plaintiffs case. Defendant claimed that it was pulled down by a -co-servant, and that a declaration was made to that effect by plaintiff. This, however, was denied, and may not, therefore, be accepted. But the cause of the fall remained as much of a mystery as before. Defendants are to be chargeable with negligence for thrusting plaintiff into a dangerous place, but before they can be so charged there must be a condition •established showing that it was dangerous. If the bales stood high and in immediate proximity to plaintiff, and were insecure and toppling, had fallen before, or were apparently liable to fall, or if there was violent motion or motion of the vessel sufficient to render them insecure, there would be something from which the jury could ■say that this was a dangerous position. The position of the witnesses enabled them to speak as to these znatters, but their mouths remained closed, and, aside from the accident itself, we are left mainly to conjecture what the condition was, and we may or may not conjecture that it was zznsafe and dangerous. This unsatisfactozy condition is insufficient as a basis for the awarding of damages. It may be that this place was apparently dangerous, but it is not so proved by this record. The danger from standizzg under an open hatchway of liability to be stz’tick by falling material, has been repeatedly forced upon the attention of the courts. This.was the place selected by plaintiff. Was the place where he was directed to go znore or less dangerous? We do not'know, and the proof does not enlighten us. As we az-e unable to tell what caused this bale to fall, coupled with the fact that we are not able to see that the place where plaintiff was directed to go was znore dangerous than the place he was directed to go from, or that either was at .the time, apparently dangerous, we must conclude that negligence was not made out. For we can as well say ' that the injury arose from an unforeseen cause which no one could contemplate, front a latent defect which was not apparent or discoverable by inspection, or from a cause of which plaintiff assumed the risk, as to say otherwise. The responsibility now resting upon this court respecting this class of actions makes the duty of the court more imperative in its scrutiny of the evidence than ever before. And we must he able to see that the evidence fairly warrants the verdict rendered and that it is sufficient for its support. -

The defendants are entitled to a new trial. Judgment should, therefore, he reversed and a new trial ordered, with costs to abide the event.

All concurred, except Babtlett, J., not sitting.

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