Andersen v. New York & Cuba Mail Steamship Co.

Van Brunt, P. J.: The appellant is a corporation organized under the laws of this State and operating and conducting certain steamships employed in the business of carrying and conveying passengers and goods between, among other places, the port of New York and the port of Cienfuegos, Cuba. One of the vessels employed by the company was a steamship called the Gienfuegos. For a period of about twenty-two months prior to the happening of the accident which formed.the subject of this action the plaintiff had been employed as a seaman upon various steamers of the defendant, and for eight months had been employed upon the vessel in' question. On the 17th of December, T889, while the steamer Gienfuegos was lying in the j>art of Cienfuegos the plaintiff was called upon, shortly after five o’clock in the afternoon, to assist the carpenter in closing certain ports of the vessel between decks through which cargo had been discharged during the day. The plaintiff was then upon .the main deck. He and the carpenter went down to the lower deck through the forward hatch and then went aft.' The plaintiff noticed a couple of boilers that lay upon the deck upon which he was to close the ports forward of the hatch through which he fell. He walked alongside one of the boilers to the port on the port side of the vessel and closed the same ; and then Went across the hatch in question to the port on the starboard side and closed it. Prior to the closing of the ports there was abundance of light between the decks, but when the starboard port was closed it was so dark that nothing [220] could be seen. The plaintiff then started to go forward to reach the hatch down which he had descended, and, as he says, striving to avoid the boiler, he attempted to walk on the hatch in question, and the same being partially uncovered, he fell through. . It appeared from the evidence that the hatch was situated midway between the two ports, which were closed, with a space on each side of about twelve feet between it and the sides of the vessel. It further appeared that the plaintiff was acquainted with the-situation of the hatch, and that upon a previous occasion, when he went down to close the ports, he looked to see whether the hatch was closed and found that it was; that upon the occasion in question there was sufficient light between decks when the .ports were open for the plaintiff to see whether the hatch was entirely closed or not, and that he did actually walk over the covered part of the hatch in order to close the port on the starboard side of the vessel after he had closed the port on the port side. There seems to have been no necessity whatever for the plaintiff to walk upon this blind hatch in going to the forward over-all hatch. He says that he was endeavoring to avoid the boiler, which was lying against the starboard side of the vessel; but it appears that this boiler was lying forward of the blind hatch through which he fell, and that he was not compelled to walk upon the latter for the purpose of avoiding contact with the boiler.' It is also clear that any observation exercised upon the part of the plaintiff, while even the starboard port alone was open, would have disclosed the condition of- this hatch as to covering. The defendant desired to show that it was customary while vessels such as this were lying in port, and the discharge of their cargo was unfinished, to allow the blind hatches to be left uncovered at night. This evidence was objected to as incompetent; the objection was sustained and the defendant excepted. This ruling seems to have been error. The defendant had a right to show what was the customary course of business upon this ship. The plaintiff had been engaged upon her for the- past eight months and had made frequent voyages in her, and for twenty-two months had been engaged in ships on this line, some of which were similar to this vessel, and, upon the question of the use of due diligence, it seems to have been entirely competent to show that it was usual for [221] hatches of this description to be left open at night while the discharge of cargo was unfinished. For, if such .was the practice and such a condition of things might be anticipated, it certainly was the duty of the plaintiff in going between decks in the neighborhood of this hatch, of the existence of which he was aware, to see for himself whether it was open or closed. He testified that once before he had performed this duty and found the hatch closed; but on the occasion of the happening of the accident it is not shown that he exercised any diligence in ascertaining whether the hatch or any part of it was open or not. It seems to be reasonably clear that the question as to whether he used due diligence or not depended upon the condition of things which he had a right to expect, and, therefore, when the court excluded evidence ,as to what was the condition of things which the plaintiff might naturally expect to find between these decks, one of the elements by which his diligence might be tested was excluded from consideration. The judgment and order must be reversed and a new trial ordered, with costs to appellant to abide event. Rdmsey, Williams and Patterson, JJ., concurred.