
    Richard Kennedy, Respondent, v. The Cunard Steamship Company, Ltd., Appellant.
    
      Negligence — master and servant — ships and shipping — longshoreman injured through fall into unguarded hatchway — not guilty of contributory negligence as matter of law in attempting to make way to door when left in darkness by the closing of hatch above by fellow-workman.
    
    
      Kennedy v. Cunard Steamship Co., 197 App. Div. 459, affirmed.
    (Argued March 14, 1923;
    decided April 17, 1923.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1921, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial .Term in an action to- recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Plaintiff, a longshoreman, was engaged in loading cargo on the lower deck of one of defendant’s steamships. At quitting time he was the last man to leave the hold. When he reached the orlop deck all of the men but himself had reached the decks above, and while he was getting his coat the upper hatch was put on leaving him in darkness. He shouted to the men above but received no answer. While attempting to make his way, in the darkness, to a bulkhead door, he fell into an open hatch and received the injuries complained of.
    
      Thaddeus G. Cowell for appellant.
    
      Harold R. Medina and C. Fuller Williams for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. Held, as matter of law plaintiff was not guilty of contributory negligence and, therefore, the question of comparative negligence is not involved or passed upon; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  