
    Mary Smith, as Administratrix, etc., of Joseph Smith, Deceased, Appellant, v. Edgar F. Luckenbach, Individually and as Executor, and Kings County Trust Company, as Executor, etc., of Lewis Luckenbach, Deceased, and Others, Respondents.
    Second Department,
    February 28, 1913.
    Master and servant—negligence—death of stevedore by fall from hatch plank—evidence — contributory negligence—erroneous non-suit—liability under charter party.
    Where in an action for the death of a stevedore killed while at work in defendants’ ship, it appeared that as the intestate stood upon a starboard hatch plank and attempted to remove a port hatch plank the starboard plank gave way and he fell into the hold; that the hatch plank upon which he was standing barely touched the corners of the fore and aft piece; that the ends of such piece were so worn as to allow it to move from side to side and that such piece had been in use for more than one ' and one-half years, the jury could have found that the cause of the accident was defective apparatus, and that such defect was attributable to the negligence of the defendants.
    The alleged contributory negligence of the intestate under such circumstances could not be disposed of as a matter of law and it was reversible error to dismiss the complaint.
    A charter party did not relieve the defendants from liability for such a defect since they undertook therein to maintain the ship in a thoroughly efficient state during her voyage.
    Reargument of an appeal by the plaintiff, Mary Smith, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of February, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. (See 153 App. Div. 912.)
    
      William C. Beecher [Alfred C. Cowan with him on the brief], for the appellant.
    
      E. Clyde Sherwood [Peter S. Carter and Amos H. Stephens with him on the brief], for the respondents.
   Jenks, P. J.:

This action is for negligence, and the appeal is from a judgment that dismissed the plaintiff at the close of her case. The plaintiff’s intestate, a stevedore, was killed when at work in the defendants’ ship. As he stood upon a starboard hatch plank and attempted to remove a port hatch plank, this starboard hatch plank gave way and carried the intestate down into the hold. The construction of the hatch included a wooden fore and aft piece which, extended lengthways with the ship. There were rims or rabbets in the piece as well as around the sides of the hatch, and the hatch planks rested normally upon these rims at right angles to the fore and aft piece. When the plaintiff closed her case, there was proof that as the intestate went about this work this fore and aft piece craned ” and “ wobbled,” and thereupon the plank fell. This sustains the theory of the plaintiff that the fall was due to a departure of this fore and aft piece from its proper position at right angles to the plank upon which the intestate stood, so that thereby its support of the plank was taken away. There was proof that the hatch planks in position barely touched the comers of the fore and aft piece, that the piece itself did not fit into its sockets very tightly, in that its ends were worn so as to play sideways towards the port side for a space variously estimated from % of an inch to 2 inches. I think it is possible that one might stand upon a starboard plank thus supported, and yet by.his motion in reaching over to remove a port plank, disturb such a fore and aft piece so that it would “ crane ” or wobble ” and thus remove its support from that plank. There was proof also that this fore and aft piece had been in use for more than 1% years. At this stage of the case, I think that the jury could have found that the cause of the accident was defective apparatus of the ship, and that such defect was attributable to the negligence of the defendants. For this reason, and for the further reason that the alleged contributory negligence of the intestate could not then in any event be disposed of as a matter of law, I think that the dismissal of the plaintiff was reversible error. (The Rheola, 19 Fed. Rep. 926; The Elton, 83 id. 519; The Yoxford, 33 id. 521; The Red Jacket, 110 id. 224; Anderson v. The Ashebrooke, 44 id. 124; Leyland & Co. v. Holmes, 153 id. 557.)

The charter party did not absolve the defendants from liability for such a defect, if otherwise culpable, inasmuch as the defendants undertook therein to maintain the ship in thoroughly efficient state in hull and machinery during her voyage. (See Connors v. King Line, Limited, 98 App. Div. 261; The King Gruffydd, 131 Fed. Rep. 189.) We express no opinion upon the ultimate liability, but confine ourselves to the question of the propriety of the dismissal.

The judgment is reversed and a new trial is granted, costs to abide the event.

Thomas, Carr, Woodward and Eich, JJ., concurred.

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