
    Michael Foley, Respondent, v. The Brooklyn Gas Light Company, Appellant.
    
      Negligence—servant slipping off a defective keelson of a coal large inaster not liable for'conditions created by tlie servant.
    
    In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, who-was entirely familiar with the work, was engaged, with other men, in unloading coal from a vessel; that the unloading had proceeded until a part of the keelson, which was three and one-half or four feet high, had been uncovered, the top of which had been about two feet wide, but had been narrowed and rounded by the action of the coal. In attempting, to walk upon it, in order to reach a ladder which had been lowered from the deck to the bottom of the hold, the plaintiff slipped, because of the rounded top of the keelson, and -was. injured. . .
    The men engaged in unloading the vessel were paid by the ton for unloading it, and while their work was under the general supervision of a manager, yet they themselves, to a great extent, regulated its course and conduct. The ladder was placed in position by the men themselves, they selecting the place and the. defendant exercising no control whatever over such selection.
    
      Held, that the workmen in the hold, and not the defendant, were chargeable with knowledge of the condition of the keelson;
    That, as the conditions existing at the time of the accident were created by the workmen themselves, over the manner of the performance of whose work the defendant exercised no control, no liability attached to the defendant because, of the accident.
    Appeal by- the defendant, The Brooklyn Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11,th. day of April, 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 Kings, and! also from an order entered in said clerk’s office on the 20th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes. '
    The action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant.
    
      William If. Dykman, for the appellant.
    
      Britton H. Tabor and William 8. Bennet, for the respondent.
   Hatch, J.:

Practically there is no disputed question of fact in this case. It appeared that plaintiff was employed with others in unloading a vessel laden with a cargo of coal. He was perfectly familiar with the work and the method of unloading, having been employed in similar work by the defendant for upwards of twenty years. The coal was shovelled into buckets, which were raised and lowered into the hold of the vessel by means of a hoisting apparatus. The coal was removed from various parts of the vessel and as the depth in the hold became greater the men ascended, when they had occasion, to the deck -by means of rope ladders which were let down the hatchway from the deck. It does not appear that the ladders furnished belonged to the defendant, hut rather that they belonged to the vessel, and it was the usual custom for the workmen to obtain the ladders from the vessel. Plaintiff was unable to state who furnished them, and those of his witnesses who were questioned upon the subject said that the men . generally got the ladders from the vessel or were told by the defendant’s manager to get them on the vessel, and they were lowered by the men from above, who announced to those below where the ladders were' situated. There was no particular place where the ladders were placed ; that depended upon where the men were at work, the ■amount of, coal that had been removed, and the selection by the men who lowered the ladders. The circumstances which led tip to the accident were these: The coal had been removed until the

keelson, in a part at least of the barge, was exposed, The ladder was let down a hatchway for the men to ' ascend for dinner. In order to reach this ladder plaintiff and others were obliged to get tipon a bucket of coal, step upon the keelson, which was three and

a half to four feet high, and pass along that to the ladder. The keelson was originally about two feet wide, but had been narrowed and worn rounding by the action of the coal. One of the men, from above, announced where the ladder was, and plaintiff, with others,, some ahead of him, some behind, started for the ladder to ascend.. Plaintiff stepped upon the bucket of coal and from thence on to the keelson, took one step, when, on account of the rounded top, he slipped and fell, sustaining the injury complained of. Some workmen preceded him, some followed after] and all but himself had a safe passage. We are of opinion that upon these facts no cause of action was made out against the defendant.' The men engaged in unloading this vessel were paid by the ton for unloading, and while their work was under the general supervision of a manager, yet it is' evident .that in its "prosecution they regulated, to a very large' extent, the course and conduct of .the work. So far as the conditions existing in the hold of the vessel were concerned, they were created by the workmen, and were continually shifting and changing as the work progressed. It is quite evident that whether a. given place in the hold became dangerous or not would depend entirely upon the manner in which the workmen removed the cargo,, and whether it was safe or otherwise would become a condition of their own creation. Under such circumstances no liability attaches, to the master for injuries received on account of such condition. (O' Connell v. Clark. 6 App. Div. 33; Loughlin v. State of N. Y., 105. N. Y. 159.) This keelson was exposed by the workmen themselves,, and they knew or were chargeable with knowledge of its condition. The defendant could not be supposed to know at what moment it. would be exposed, or what would be its condition when exposed, or that the men would attempt to make use of it. Nor could he know if it woxdd be plainly visible or only dimly seen. But all of these conditions were known to plaintiff or his fellow-workmen, and they were chargeable with knowledge of whatever, danger there was in the situation. Nor was the master responsible for the ladder being placed in this position. The men made selection of the place where they would lower the ladder, and over this matter it is not pretended that it exercised or was expected to exercise the slightest control. It is true that the evidence warrants the assumption that the manager told the men where to get the ladders. But of what use they should make of them when obtained, what hatchway. they should be let down, and what notice should be given to the men below was always regulated by the men, and there is not the slightest proof to show that the master exercised any control or gave any directions or was expected to give any in connection therewith. We-are not aware of any case, and none has been called to our' attention, where liability attached to the master under such circumstances. We are unable to discover from the record any evidence upon which to predicate negligence of the defendant.

The judgment should, therefore, be reversed arid a new trial ordered, with costs to abide the event.

All concurred.

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