
    Kate Hogan, Adm’rx, Resp’t, v. Allen C. Smith et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    
    Negligence—Master and servant.
    In an action for negligence it appeared that the deceased was working on the lowest deck of a steamship, which deck was of iron beams without floor or planking; he was engaged in loading flour; a platform of planks, upon which to receive the bags of flour, was laid on the beams and was about the size of a jury box; there was some evidence that it was customary to build this platform back, i. e., larger than was actually required for the flour; in this case this had not been done; the deceased had not helped build the platform; the flour came down by a sling with great speed; the head of a man standing on the platform came above the lower deck and he could not without stooping see behind the platform on which the bags was piled; it was dangerous work and a man was required to look upward at all times to see the bags coming down while at work with his back to the open space; deceased was struck by a bag, fell back into the space and was killed. The court instructed the jury that defendants must provide a reasonably safe place for work. He submitted to the jury the question whether it was customary to cover the open space. He also said that if the deceased did not know the space was open they might consider whether under the circumstances he should have known it.
    ' Held, that with these instructions it was a proper.case for the jury.
    Appeal from judgment in favor of plaintiff.
    This action was brought to recover $5,000 damages for the death of plaintiff’s intestate, her husband, occasioned by the negligence of defendants.
    Plaintiff’s intestate, who was a longshoreman, was employed by defendants in helping to stow a cargo of flour on the ship Devonia, on June 8, 1881, at pier 21, North river.
    It appeared by the evidence that the deceased was working on what is called the orlop deck or the lower deck of the vessel There are two decks above this deck.
    The orlop deck is an open deck, consisting of iron beams running across the vessel from side to side, and with no planking or floor covering the beams.
    The hatchway, which opens on the main deck, continues down to the orlop deck, where there is also an opening called the square of the hatch. Across a portion of the square of the hatch on the orlop deck there was built a “ stool ” upon which the men stood to receive the flour as it was lowered down into the vessel. This stool is made of bags of flour piled iipon one another upon temporary planks laid across the Beams and upon the square of the hatch. These bags of flour are placed so as to make the “ stoolv about three and one-half feet high, and covering a space about the size of a jury box.
    The planking was also laid upon the orlop deck of beams, that the men who stow away the flour could walk up to the stool, and taking a bag of flour on their backs, could carry it off to the place where it was to be stowed. *
    
      It appeared that it was customary to build or lay the temporary planking beyond the space where the men were working.
    In this instance, however, the planking did not continue behind the stool where the deceased was working, but there was an open space left. Defendants’ witness admits that they neglected to cover over this open space.
    The top of the stool was about three feet from the lowest covered deck, so that the heads of the men working on the stool extended above the hatch of the covered deck, and a person working on this stool could only see the open space behind the stool by stooping.
    The deceased was in the act of making up a sling, stationed on the stool near the open space, with his back to the open space, and his face to the opposite side.
    He was struck by a draft or sling of ñour and fell backward into the space left uncovered, and thus down into the hold, a distance of about twelve feet, upon a mass made up of pieces of iron about three feet long, and weighing about 500 pounds, and received injuries which resulted in his death.
    The deceased was one of the last men coming down upon the lower deck, because the last men are generally put to work on the stool. He had to pass through two decks in order to reach the one in question, and coming from the daylight, he would not have been able to see the open space behind him which was not lighted. It further appeared that the slings of flour “ came down as quickly as chain lightning,” and that a person working there had to keep his eyes up towards the light all the time, or he would be lost.
    It appeared by the evidence that the deceased and other longshoremen were only employed by the hour, and although the stool in question was built by certain longshoremen, it did not appear which particular longshoremen built it The deceased was not employed as longshoreman when the stool was built; he came there after the stool had been built, and he did not know the danger he was in.
    Upon the first trial of this action, the circuit judge dismissed the complaint, and upon an appeal taken by the plaintiff from the judgment entered upon such dismissal the general term of this ■court reversed the judgment and ordered a new trial, Judge Daniels writing the opinion. Thereafter, the defendant moved for a reargument of the appeal, and the motion was denied, Judge Daniels again writing the opinion of the court, and holding that the case should have been submitted to the jury.
    
      Samuel Oreenbaum, for resp’t; Jos. A. Shoudy, for app’lt
   Brady, J.

The views entertained by the general term were that the intestate himself was not so proven to have been chargeable with negligence as to permit the court to withdraw that inquiry from the consideration of the jury, nor to have taken upon himself his exposure to this risk as one of those attendant upon his employment. The case as then presented was considered, therefore, to be clearly distinguishable from Kennedy v. Manhattan R. Co., 33 Hun, 457, where all thé risks of the employment were open to observation. The open hatchway below where the intestate herein was proved, to have been working was not within his immediate view and could be discovered only by accident or Special effort.

The second trial was conducted with reference to these principles, modified in some respects, it may be, by the charge of the learned judge presiding. The defense consisted of different elements, one of which was that the defendants were under no obligation to see that the space mentioned in the statement of fact was covered; that this was the usual way in which the decks were prepared for such work as was to be done, and that the deceased was guilty of negligence and could not recover.

These 'subjects were fairly and distinctly discussed in the charge, and the defendants accorded by the rules declared all that they were entitled to. The learned justice said that it was the duty of the defendants, as had been previously decided by the general term, to provide a reasonably safe place upon which the deceased could work, from which the defendants could not be relieved unless the deceased himself was one of the persons who constructed the stool upon which he was standing, when he would probably be guilty of negligence in regard to its construction. He then discussed the evidence on the subject, showing that the space through which the deceased fell was not covered, although it was customary to cover it, and he made the suggestion then, which was proper, that the deceased had a right when he went there to suppose that it was covered. The question whether it was customary or not to cover the space as indicated was submitted to the jury, and also whether it was made reasonably safe as a working-place, with instructions that if they found that it was reasonably safe, the defendants were entitled to a verdict, and if it was not safe, then it would be the duty of the jury to consider whether the defendant was guilty of negligence in regard to the accident.

The important question suggested by the defendants’ counsel as to whether the deceased assisted in the construction of the stool was also submitted to the jury, and they were instructed that if he did he could not recover.

The defendants further claim, that the deceased took the risk of the danger of his employment. Upon that subject the general term 'had expressed its opinion as we have stated, and the learned judge said in his charge that even though the deceased had not anything to do with the construction of the stool, if when he began his employment he saw that the space was open and continued voluntarily in the employment he undoubtedly took the risk of that danger and the plaintiff could not recover; and if he did not know it then the question would arise whether under all the circumstances he ought to have known it.

It thus appears that the case was fairly and fully submitted to the jury upon the various questions necessarily involved "and as already stated with such proper instructions as were necessary.

Defendants’ counsel however requested the court to instruct the jury that if the deceased was unable to see the open space into which'he fell he was guilty of contributory negligence in undertaking to work in such a position. It may be said that this proposition must be attributed to exaggerated zeal. It cannot be entertained for a moment.

The defendants’ counsel also excepted to the instruction that it was the duty of the defendants to provide a reasonably safe place upon which the deceased could work. As we have already seen that view of the law was declared by the general term and the exception is of no value.

The defendants’ counsel excepts to so much of the charge as stated that it was no defense that any other longshoremen were guilty of negligence in the construction of the platform or otherwise. This exception is of no value for the reason that it omits the qualification made by the learned judge by adding “ unless It can be shown that they were fellow servants at the time of the •construction.”

The defendants’ counsel excepted to the qualification, and to the charge as given.

Defendants’ counsel also excepted to so much of the charge as states in substance that if the deceased took no part in the construction of the platform or stool, that then he could not be guilty of negligence in its construction, or chargeable with the negligence •of any of the servants of the defendants.

Also that he could not be guilty of negligence in such construction, or chargeable with the negligence of any of the servants of the defendants, if he entered the employment after the platform was constructed.

From the statements herein- made of the chief features of the •charge, it will at once suggest itself that these instructions as to the construction of the stool were not left unqualified for the consideration of the jury, for it was stated to them that if the deceased knew of the open space, or if, under all the circumstances, he was guilty of a want of reasonable care in not discovering the open space, or was chargeable with notice thereof, the plaintiff could not recover.

The learned counsel for the defendant has labored assiduously to bring the facts of ’ this case within the adjudications to which he refers declaratory of principles which, if applied, would absolve his clients; notably the case of Stringham v. Hilton, 111 N. Y., 188; 19 N. Y. State Rep., 621; Webber v. Piper, 109 N. Y., 496 ; 16 N. Y. State Rep., 423; Hussey v. Coger, 112 N. Y., 614; 21 N. Y. State Rep., 848; Byrnes v. New York, Lake Erie & Western R. R. Co., 113 N. Y., 251; 22 N. Y. State Rep., 936, the doctrines of which cases are that: “ The master is not an insurer that all his servants shall perform their duty, and he performs his duty to the servant in this regard in providing a system of inspection, and trusting its performance to competent hands. If, thereafter, such servants are guilty of negligence, the master is not responsible therefor to a co-servant.” And further that: “ It would be extending the liability of the master beyond any established rule to require him to oversee and supervise the •executive detail of mechanical work carried on under his employ-ment, and there is no rule of law which authorizes it The risks arising to employees from the negligence and carelessness of fellow-workmen are incident to the service in all mechanical employments, and must be borne by the servant, and even with this limitation the field of the master’s liability is sufficiently broad to impose upon him most onerous obligations in ?fche conduct of industrial enterprises.”

These cases, however, recognize the proposition that an employer must perform the duties which the law enjoins upon him before he becomes exempt from liability for injuries sustained in the ordinary and usual mode of prosecuting the work in hand.

Here the question whether the defendants had discharged their duty was one which, under the evidence, was submitted to the jury. There was a question whether the stool was constructed in the ordinary mode, evidence having been given by one longshoreman that the space left uncovered it was usual to cover, the place itself in which the men were called upon to work being per ,$e unsafe, and so much so as to cast upon the employer the burden of great vigilance.

It must be said, also, that in this case it did nokappear conclusively that the rule of law could be applied which exempts employers from liability who had employed competent and skillful persons to make the necessary arrangements to carry on the work in contemplation. It is a fair inference that the space having been improperly left open, it must be regarded as having been found by the jury as evidence of their incompetency.

The error in the attitude of defendants’ counsel arises from his assumption, apparently, that whether the employer has provided a safe and proper place for the workmen or not occasions no liability if he have employed competent men to do the work, provided the persons injured have participated in the construction of any apparatus for the purpose of prosecuting the work or have used it. These propositions go on pari passu together. This view, as we have seen, is erroneous.

On the subject of the master’s liability in the respect suggested, see, also. Benzing v. Steinway, 101 N. Y., 552; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id., 379; 12 N. Y. State Rep., 9; Cullen v. Norton, 22 id., 222, and Tendrup v. Stephenson, 51 Hun, 562 ; 21 N. Y. State Rep., 487, and the general term opinion in this case.

The preservation of the rule imposing the obligation of providing safe places for the workmen may be regarded as a sacred duty by the courts, and should prevail in every case where it can be applied. Indeed, it would seem'to be just to require the employer ih all cases of dangerous employment to prove that the person working was advised of the fact, and thus took upon himself the responsibility of safety. It is not intended, however, to apply such a rule in this case, but the seemingly reckless disregard of human safety making the business elements of life and which require workmanship in dangerous places and under circumstances of great peril, calls for the intervention of more exacting obligations, with a view to better results in all respects.

In this case we see no reason, 'however, why the judgment should be interfered with, and it should, therefore, be affirmed.

Van Brunt, P. J., and Daniels, J., agree to the result.  