
    John Quinn, Respondent, v. The Staten Island Rapid Transit Railway Company, Appellant.
    First Department,
    December 30, 1915.
    Negligence — fall through unfloored portion of coal pier—duty of pier owners to licensee — facts not justifying recovery.
    Where a railroad company maintains a pier used solely for the handling and shipment of coal and which, while floored at the outer end, has no flooring where it approaches the shore, the captain of a barge, which was sent to the pier to be loaded with coal, cannot recover for injuries received by falling into the water through the unplanked portion of the pier while attempting to reach the shore by means of the pier during the night time.
    The plaintiff was at most a mere licensee toward whom the defendant owed no care beyond the very slightest and no legal duty except not to willfully or intentionally injure him.
    
      Appeal by the defendant, Staten Island Rapid Transit Railway 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 27th day of May, 1915, upon the verdict of a jury for §2,000, and also from an order entered in said clerk’s office on the 2d day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Lyle H. Hall, for the appellant.
    
      George F. Hickey, for the respondent.
   Scott, J.:

The defendant is the owner of a long pier at Staten Island, in the county of Richmond, which is used for the handling and shipment of coal. For about 430 feet at its outer end it is double-decked. Coal cars are run onto the upper deck and their contents dumped into coal chutes. Barges to be loaded are moored alongside the pier and filled from the coal chutes. The principal use of the lower deck is to afford support in the upper. It is floored over and covered with what one witness graphically describes as a labyrinth of columns spaced closely together and designed to sustain the great weight of the upper deck. These columns are built upon twelve-inch timbers, running across the pier at twelve-foot intervals, and projecting eight inches above the flooring. This flooring extends from the outer end of the pier to a point about 300 or 350 feet from the shore where the pier narrows and the flooring is discontinued.

Plaintiff is the captain of a coal barge which had been sent to the pier to be loaded. On the evening of March 19, 1911, which was Sunday, plaintiff and his wife started after dark to walk along the pier to the shore. They proceeded along the middle of the pier between the columns and over the timbers above described until they reached the point where the flooring ended when they fell into the water, and plaintiff was injured. He had no necessity arising out of the business upon which he was engaged to walk along the pier at all, and did so purely for purposes of his own.

It is apparent that plaintiff, if not a trespasser upon the pier, was at the most merely a licensee toward whom the defendant owed no care beyond the very slightest and no legal duty except not to willfully or intentionally injure him. The rule applicable to such a case is succinctly stated in Cusick v. Adams (115 N. Y. 59) as follows; '“The principle is now well settled by repeated adjudications in this country and in England that where a person comes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself.”

This rule is reiterated and supported by a great number of cases in this State.

No act of affirmative negligence is charged against defendant or shown by the proof, and obviously the nature of the construction of the lower deck of the pier was such that no invitation to use it as a passageway could be inferred. The pier was apparently properly constructed for the purpose for which it was intended to be used, and certainly the portion upon which plaintiff elected to walk was apparently not intended to be used as a way of passage.

Plaintiff simply took his chance of finding a hole or an obstruction, for “ ‘an open hole which is not concealed otherwise than by the darkness of night is a danger which a licensee must avoid at his peril.’” (Foxy. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 244.) No cause of action whatever was shown against the defendant, and the motion, made at the close of the case, to dismiss the complaint should have been granted.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment reversed, with costs, and complaint dismissed, with costs.  