
    Rafele Santiago, Respondent, v. John E. Walsh Stevedore Company, Appellant.
    Second Department,
    October 4, 1912.
    Master and servant — negligence—injury to stevedore while loading vessel — erroneous charge — evidence justifying nonsuit.
    In a common-law action by a servant against his master to recover for personal injuries alleged to be due to the furnishing of improper skids for the protection of the work, on which issue the evidence is conflicting, it is error to refuse a request to charge that the defendant was not bound to provide instrumentalities other than those furnished merely at the request of the servant, and that it was immaterial that there are better or different appliances, so long as those provided were reasonably safe.
    In such action it is error to refuse to charge that if the plaintiff knew that the lights were inadequate, that the number of skids was insufficient, and that his fellow-workmen were intoxicated he cannot recover as he assumed the risk.
    
      Where on the trial of suoh action there is no proof that the person superintending the work and alleged to have been intoxicated at the date of the accident was in the employ of the defendant, or under its control, it is error to refuse to charge that the failure of the defendant to produce said person as a witness raised no presumption that his testimony would be unfavorable.
    Action against a master to recover for injuries received by a servant, a stevedore engaged in loading a vessel. Evidence examined, and held, that a nonsuit should have been granted.
    Appeal by the defendant, John E. Walsh Stevedore Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 19th day of February, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 16th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      James J. Mahoney [M. J. Wright and Edward I. Taylor with him on the brief], for the appellant.
    
      James Burke, Jr., for the respondent.
   Burr, J.:

This is a common-law action of servant against master. The judgment must be reversed for errors in connection with the charge. One of the alleged grounds of defendant’s negligence Was failing to provide adequate appliances, to wit, skids, which were employed in the prosecution of the w;ork. The evidence on this point was conflicting. The court was asked to charge “that the defendant is not bound to provide other instrumentalities than he has furnished merely at the request of a servant; that it is immaterial that there are better or different appliances, so long as those which he provides are reasonably safe.” The court said: “I decline to charge except as already charged upon that point,” and defendant excepted. The request was a proper one. (Fahey v. New Amsterdam Gas Co., 134 App. Div. 611; Smith v. Long Island Railroad Co., 129 id. 427; Maue v. Erie Railroad Co., 198 1N. Y. 221; Harley v. B. C. M. Co., 142 id. 31.) The point had not been theretofore referred to in the charge. Further allegations of negligence were an insufficiency of lights and the intoxication on this occasion of two of plaintiff’s coemployees, one being the foreman and the other the winchman. The court was asked to charge “that if the plaintiff knew of the insufficiency of lights, of the number of skids that were there, and of the alleged intoxication of O’Hara and Chrystie, that he cannot recover; that he assumed the risk.” The court declined except as already charged. For the reason above stated the exception did not qualify the declination. Plaintiff was an experienced stevedore, having been engaged as such for eight years in. this country. He testified to the absence of lights, to the fact that there was only one skid, and that he knew that, the foreman and winchman were drunk on this occasion. With his experience he must have known the resulting damages, if any. The request, under the circumstances, should have been complied with. (Marsh v. Chickering, 101 N. Y. 396; Marsen v. Nichols Copper Co., 134 App. Div. 294; White v. Lewiston & Youngstown F. R. Co., 94 id. 4; Bria v. Westinghouse, Church, Kerr & Co., 133 id. 346; Skapura v. National Sugar Refining Co., 83 id. 21; Fitzgerald v. Newton Falls Paper Co., 204 N. Y. 184; Rooney v. Brogan Construction Co., 194 id. 32.) The foreman, O’Hara, was not called as a witness on the trial. Plaintiff’s counsel asked the court to charge “ that if the defendant has failed to produce any material witness, the jury may assume that the testimony of such witness will not be favorable to the party who fails to call him.” The court so charged and defendant excepted. There was no evidence in the case, that at the time of the trial O’Hara was in defendant’s employ or under its control. Defendant, calling the court’s attention to that fact, asked it to charge “that there is therefore no presumption that his testimony would be unfavorable to the defendant, if produced.” The court declined, adding, “ There is no proof of any attempt on the part of the defendant in this case to produce that witness nor any excuse offered why he is not produced.” Defendant excepted. These exceptions present fatal error. But, as a new trial niust be had, it may not be amiss for us to say that upon the evidence presented by this record defendant’s motion for a nonsuit should have been granted. There is a sharp conflict of evidence upon every material point in the case, and there were many discrepancies, contradictions and improbabilities in the testimony of plaintiff and his witnesses. But, accepting it for the time being as true, the accident resulting in plaintiff’s injury occurred in this wise: Defendant was engaged on November 4, 1908, about seven-thirty o’clock in the-evening in loading a vessel lying at a pier in the East river. A lighter lay alongside, from which cotton was being raised by a block and fall and lowered into the ship’s hold. The hoisting appliances Were operated by a steam winch. Upon the deck of the vessel was a plank or skid, one end of which Tested upon the coaming of the hatch and the other on the side of the vessel* Plaintiff was the gangwayman, Ohrystie was the winchman, and O’Hara was the foreman on the deck of the vessel. Three bales of cotton were placed in a sling, the gangwayman gave to the winchman a signal to raise the load, and as it swung over the deck of the vessel a further signal to lower so that the load rested on the skid. This was to enable the gangwayman to see that it was clear in the hold and that the workmen there employed were out of the way of the descending draft. Upon a further signal they were lowered into the hold. The bales of cotton had been raised from the lighter and rested on the skid. As plaintiff contends, before he had an opportunity to see if the hold was clear, and before he had given any signal, the winch-man started'up the engine and the bales of cotton toppled over from the skid and fell upon his leg, breaking it between the knee and the ankle. Plaintiff contends that defendant’s negligence .may be found (a) in an absence of lights, (bj in an insufficient number of skids — there was only one When there should have been two — (c) in retaining in its employ incompetent employees with knowledge of their incompetency, which incompetency was the cause of the improper management of the winch. So far as the absence of lights is concerned, if it existed it was not the proximate cause of the injury. Plaintiff testifies that there was no light on the deck. The testimony somewhat taxes credulity, for" at half-past seven on the evening of November fourth it appears that he could see perfectly to do his work. He could not only see the bales of cotton on the lighter, see them as they came over the ship’s side, see them as they rested on the skid, but also apparently see down in the hold sufficiently well to ascertain if it was safe to lower. Two of his witnesses, and the only eye-witnesses of the accident which he called, were engaged on the deck of the lighter, and they claim to have seen exactly how the accident occurred. One of them testified that he could see “ these bales go from the edge of the deck to the hatchway. We could see it, could see it plainly. We could see the skid from where I stood.” According to plaintiff’s testimony the winchman did. not depend upon sight. His actions were controlled by signals given by a whistle. As to the skids, plaintiff and his witnesses testified that there was but one, about two and one-half or three feet wide, whereas, as plaintiff testified, it was customary to have two wide skids. But if the accident can be attributed to the fact that there was but one, plaintiff knew that there was but one, knew that it was customary to have two, and appreciated the danger, if any, arising from the use of one, for he testified that he complained to O’Hara about it fourteen or fifteen minutes before the accident, and he replied, “I will not put any other skids; go on and work with what you have.” Under the authorities above cited the risk from that time on became his.

As to the incompetent fellow-servants, the alleged • incompetency of O’Hara may be dismissed from consideration. He had nothing to do with the management of the appliances in. connection with which the accident arose. Plaintiff testifies that “ O’Hara did nothing but walk up and down the deck and the hold. ” There is no suggestion that on this occasion he gave any directions to the winchman, nor is there evidence that he had authority to employ and discharge the workmen. So far as Ohrystie, the winchman, is concerned, plaintiff testified that on the night in question he was “ dizzy,” two of his witnesses said he was “ drunk,” a third that at eleven o’clock he could hardly walk, and that he was put off the job. As to this he is contradicted, not only by all of defendant’s witnesses, including Ohrystie himself, but by one of the witnesses called for plaintiff, who, after saying that he was drunk, admitted that he continued to work the winch until two o’clock in the morning after the accident, when the unloading of the lighter was completed, and that O’Hara, who, as plaintiff testified, was so drunk-that “he could not go down the stairs,” took plaintiff’s place after he was injured and also worked until two the next morning, performing the duties of gangwayman. But there was no evidence that Chrystie was in the habit of drinking to excess. One witness said he had seen him drunk twice before, but it did not appear that he was then on duty ; another said, “Í see him sometimes have a little-in.” It does not appear that defendant knew or was advised of these lapses. But plaintiff knew him and had worked with him for years. If his habits made him incompetent he was at least as well informed of the fact as defendant, and if on this occasion he was so drunk that it was unsafe to work with him, plaintiff knew even better than defendant what his condition was.

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

Hirsohberg, Thomas, Carr and Rich, JJ., concurred.

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