
    Adolph Andersen, Respondent, v. The New York and Cuba Mail Steamship Company, Appellant.
    
      Negligence—a seaman falling through a partly closed hatch — evidence as to the customary condition of a deck, while the vessel was unloading — contributory negligence,
    
    A seaman, employed on. a steamship, who was directed to assist the carpenter in closing the ports between decks, went to the lower deck, and there noticed a couple of boilers which lay upon the deck forward of the hatch on that deck, the condition of which hatch could be then seen by him. He walked alongside of one of the boilers, to the port on the port side of the vessel, and closed it, and then went across the- hatch in question and closed the port on the starboard side. . After closing these ports, which made it absolutely dai'lc upon the deck, he started to go forward to reach the hatch through which he had descended to the lower deck, and,- in striving, as he testified, to avoid the boilers, attempted to walk (although there was no necessity for doing so) upon the hatch, which was partially uncovered, and fell through it and was injured.
    In an action brought by him against the steamship company the company offered to show that it was customary, while vessels were lying in port, as was the vessel in question, and had not fully discharged their cargo, to allow such hatches to be left uncovered at night. The evidence was excluded.
    
      Held, that, as the plaintiff had been employed upon the vessel for eight months, and had made frequent voyages in it, it was competent for the defendant to show a custom of leaving the hatches open under such circumstances, as the question whether the plaintiff had used due diligence depended upon that condition of things which he had a right to expect when he went down upon the . lower deck to close the ports.
    
      It seems, that- the plaintiff had not shqwn-himself to be free from contributory negligence.
    
      Appeal by the defendant, The New York and Cuba Hail Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of Hay, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 28th day of Hay, 1896, denying the defendant’s motion for a new trial made upon the minutes and granting the plaintiff an extra allowance.
    
      Lewis Cass Ledyard and James C. Carter, for the appellant.
    
      Jacob Fromme, for the respondent,
   Van Brunt, P. J.:

The appellant is a corporation organized under the laws of this State and operating and conducting certain steamships employed in the business of carrying and conveying passengers and goods between, among other places, the port of New York and the port of Cienfuegos, Cuba. One of the vessels employed by the company was a steamship called the Gienfuegos. For a period of about twenty-two months prior to the happening of the accident which formed.the subject of this action the plaintiff had been employed as a seaman upon various steamers of the defendant, and for eight months had been employed upon the vessel in' question. On the 17th of December, T889, while the steamer Gienfuegos was lying in the j>art of Cienfuegos the plaintiff was called upon, shortly after five o’clock in the afternoon, to assist the carpenter in closing certain ports of the vessel between decks through which cargo had been discharged during the day. The plaintiff was then upon .the main deck. He and the carpenter went down to the lower deck through the forward hatch and then went aft.' The plaintiff noticed a couple of boilers that lay upon the deck upon which he was to close the ports forward of the hatch through which he fell. He walked alongside one of the boilers to the port on the port side of the vessel and closed the same ; and then Went across the hatch in question to the port on the starboard side and closed it. Prior to the closing of the ports there was abundance of light between the decks, but when the starboard port was closed it was so dark that nothing could be seen. The plaintiff then started to go forward to reach the hatch down which he had descended, and, as he says, striving to avoid the boiler, he attempted to walk on the hatch in question, and the same being partially uncovered, he fell through. .

It appeared from the evidence that the hatch was situated midway between the two ports, which were closed, with a space on each side of about twelve feet between it and the sides of the vessel. It further appeared that the plaintiff was acquainted with the-situation of the hatch, and that upon a previous occasion, when he went down to close the ports, he looked to see whether the hatch was closed and found that it was; that upon the occasion in question there was sufficient light between decks when the .ports were open for the plaintiff to see whether the hatch was entirely closed or not, and that he did actually walk over the covered part of the hatch in order to close the port on the starboard side of the vessel after he had closed the port on the port side. There seems to have been no necessity whatever for the plaintiff to walk upon this blind hatch in going to the forward over-all hatch. He says that he was endeavoring to avoid the boiler, which was lying against the starboard side of the vessel; but it appears that this boiler was lying forward of the blind hatch through which he fell, and that he was not compelled to walk upon the latter for the purpose of avoiding contact with the boiler.' It is also clear that any observation exercised upon the part of the plaintiff, while even the starboard port alone was open, would have disclosed the condition of- this hatch as to covering.

The defendant desired to show that it was customary while vessels such as this were lying in port, and the discharge of their cargo was unfinished, to allow the blind hatches to be left uncovered at night. This evidence was objected to as incompetent; the objection was sustained and the defendant excepted. This ruling seems to have been error. The defendant had a right to show what was the customary course of business upon this ship. The plaintiff had been engaged upon her for the- past eight months and had made frequent voyages in her, and for twenty-two months had been engaged in ships on this line, some of which were similar to this vessel, and, upon the question of the use of due diligence, it seems to have been entirely competent to show that it was usual for hatches of this description to be left open at night while the discharge of cargo was unfinished. For, if such .was the practice and such a condition of things might be anticipated, it certainly was the duty of the plaintiff in going between decks in the neighborhood of this hatch, of the existence of which he was aware, to see for himself whether it was open or closed. He testified that once before he had performed this duty and found the hatch closed; but on the occasion of the happening of the accident it is not shown that he exercised any diligence in ascertaining whether the hatch or any part of it was open or not. It seems to be reasonably clear that the question as to whether he used due diligence or not depended upon the condition of things which he had a right to expect, and, therefore, when the court excluded evidence ,as to what was the condition of things which the plaintiff might naturally expect to find between these decks, one of the elements by which his diligence might be tested was excluded from consideration.

The judgment and order must be reversed and a new trial ordered, with costs to appellant to abide event.

Rdmsey, Williams and Patterson, JJ., concurred.

Barrett, J.:

I concur with the presiding justice that the plaintiff failed to make out his freedom from contributory negligence; on the contrary, his negligence was apparent. Nor was negligence made out. Even if it had been, however, it was, within the rule laid down in Geoghegan v. The Atlas Steamship Co. (146 N. Y. 369), the negligence of the plaintiff’s fellow-servant. It was there said : “ If the deceased came tó his death by reason of the iron doors being left open on the night of the accident, then it was the negligence of a co-servant which led to the result.

“It was the duty of the master, or the mate, or some officer of the ship, to see that these gangway doors were properly closed and secured at night. The failure to perform this duty is negligence, for which the owner of the ship is not liable. (Benson v. Goodwin, 147 Mass. 238; Rogers v. Ludlow Mfg. Co., 144 id. 198; The City of Alexandria, 17 Fed. Rep. 390.)”

This doctrine, it seems to me, is conclusive upon the question of ■ the defendant’s liability.

I prefer to rest my concurrence upon these grounds without pass-’ ing definitely upon the admissibility of the general custom upon such vessels as that of the defendant. A general custom to act negligently would certainly not avail, and it is. hard to say when a failure to do something, which, but for the custom, would be negligent, is relieved of that attribute. It may be, however, that the rule of action upon this particular ship was admissible in.view of the plaintiff’s position. He had been employed thereon for some eight months, and must have known the usage ivith regard to leaving the hatch open over night while cargo was being discharged during the day. The case was tried and submitted to the jury upon, .the theory that the plaintiff had a- right to assume that the hatch was closed. He could hardly have assumed this if .the practice was the reverse, and if his knowledge, of the practice was fairly infer7 able from his long and steady employment upon the ship. So far I am inclined to agree with the views of the presiding justice upon this subject. Beyond that I prefer to reserve my judgment.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. •  