
    John Flynn, Respondent, v. The Maine Steamship Co., Appellant.
    (City Court of New York
    General Term,
    November, 1895.)
    inhere fenders .and a gangplank are furnished by a steamship company, and are near at hand for use in case they are needed by those engaged in transferring the cargo to lighters, the company is' not liable for injuries to a longshoreman engaged in such work, caused by a failure . to use such applicances, as the placing of them in .position is a detail of the work to be performed by the employees, and such- failure is that of co-servants.
    Appeal from judgment>in. favor of the plaintiff, entered "upon a verdict, and from order denying motionf or a new trial.
    ■ Charles C. Nadal, for appellant.
    
      Grossman dk Vorhaus, for- respondent. . ,
   Oonlan, J.

This appeal is taken from a judgment, entered uptin a verdict, and from an order denying a motion for a new trial. ■ •,

The' action was brought- to recover damages for alleged injuries sustained by the plaintiff while engaged in unloading the cargo of tlie steamer : Cottage - City onto "the lighter Hollcmd, at the defendant’s dock in the city of New York, •on the 16th of March, 1894. ' •■ ■■ • •••. '

Upon the trial of -the "action- 'thei’é was some - conflict of , .evidence as" to what was the proper tisd dr employment of fenders”"- between vessels when ■'engaged in Idading of unloading cargo. It was contended for the plaintiff that the use of these “ fenders ” 'was to prevent accidents of the kind complained of, while the claim on the part of the defendant was to the effect that their sole employment was to prevent the vessels coming together, and by so doing chafing the side of the vessel. The defendant claims that fenders were put between the steamer and the lighter as soon as the lighter came alongside of the other vessel. ' There is no dispute but what fenders, and also a gangplank, were at hand and provided by the defendant, and were always to he had at the dock when required. Indeed, it is asserted by the plaintiff’s witnesses that they were brought from the dock and placed between the vessels immediately after the accident, and there does not appear to have been any further accident after this allegéd employment of the fenders. It is also in evidence that when the lighter is much lower than the unloading vessel a gangplank is sometimes used for the passage to and fro of persons engaged in the work of removing the cargo. In this case it does not appear that the deck of the lighter was more than ten inches below the guard rail of the steamer at the time of the accident, or that any one thought of the necessity for the use of a gangplank, although one was hear by and on the dock alongside of which the steamer was moored. It is in evidence, also, that rope fenders are sometimes employed, and at others fenders made of wood) there being some dispute as to the superiority of one kind over the other. However, that is not material to the questions to be determined upon this appeal, since it is practically conceded ■ by the plaintiff that the use of either would have prevented the accident.

It was not necessary for the jury to pass upon the question as to what kind of fenders were used, nor do they appear to have done so. Upon -the plaintiff’s theory they found that , no fenders were. employed-, at least until-after the accident)- and if we are correct in this view of the case the judgment below ■ was predicated upon - the theory that:. First, fenders were necessary to .prevent accidents 'of this kind; - and) second, that it was the "duty of the defendant ■ to provide -and use them.

' The first of these propositions " may be conceded to the respondent, without running counter to any conclusions which may 'be reached by ah application of the principles of' law governing the second, viz., as to the duty of the master to provide and use the fenders in order to properly protect the person of the plaintiff and such other persons as were similarly employed. ■ . ' ■ . '

The plaintiff, was an experienced longshoreman, in the employ of the defendant at the time of the accident,f and under the direction of the head stevedore, whose duty it was to superintend .the unloading of the steamer, .and it is in evidence that the matter; was' under the orders , of the mate who was in charge of the steamer at the time of unloading. The accident consisted in the plaintiff’s heel being caught between the deck-of. the lighter and the; guard rail of the steamer as the'former vessel rose against the side of the latter from the action of the tide or some other disturbance of the . water in the slip where the vessels were unloading. ■ z

It is the well-settled rule of law, in cases like the one at bar, that the master must provide adequate and safe appliances, and such as -are usual in the particular employment in which • the servant is engaged, and the court below, following out this'principle, charged the jury “ that if the defendant provided or had at hand a.gangplank which might have been usedj but which McQuaig (the stevedore) or the men of, his gang • ■ neglected :to use, the defendant is not guilty of negligence,1' and the plaintiff cannot recover,” and also, “that if'the plaintiff noticed, or might have noticed, the absence of the fenders before the accident,. and made no-protest,’-lie assume'd the risk incident thereto and cannot recover.”

As we have said before, it cannot avail the plaintiff that the.. jui:y may have found that there were no fenders between the,' ■ vessels at. the time of the accident, .if such -fenders wCre provided by the master, and were near ■ at hand, and could have been placed in position if deemed necessary. !

■' It is nowhere disputed that fenders were provided and were • near at hand', as also á gangplank, and that they were put in position by the persons engaged in unloading the steamer after the accident to the plaintiff.

In a recent case it was said by the court, after reviewing* many authorities, It is impossible that a master himself can control the detail work of any corporation or any private business of any size.” This injury arose from negligence which was connected with the detail work; such negligence is not the negligence of the master, but is purely the negligence of the co-servant, and of this - there is no possible question.”

The evidence is overwhelming that proper appliances were at hand, and could have been used, and the failure to employ them is not negligence chargeable to the master. He did all the law reasonably required of him in providing, and having at hand to be used, proper- appliances, and, as we have seen above, their nonuse was negligence consequent upon the detail work in which the plaintiff was engaged, and was not the negligence of the master.

Sympathy for the plaintiff does not carry us to the extent of sustaining a judgment which is not founded upon correct principles of law, and we are inclined to the views of the court in the recent case of Ludlow v. The Groton Bridge Company, that “ this case is one of those unfortunate accidents which no one can be made to pay for^ at least, no employer,” and we are forced to the conclusion reached by the court 'in that case.. The complaint should have been dismissed upon the trial. ■ ’ -

We do not think it necessary to enlarge further upon this question, nor to discuss any of the other questions presented upon this appeal, having reached the conclusion that the judgment appealed from must, for the reasons stated, be reversed.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Fitzsimons and McCaiithy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  