Toy v. International Mercantile Marine Co.

Opinion by Orlady, J., The plaintiff recovered a verdict of $500.00, and after argument the court entered judgment for the defendant non obstante veredicto, from which the plaintiff has taken this appeal. The facts of the case are not in dispute, and the plaintiff’s right to recover is determined on her own testimony. She was a first-class passenger on the steamship Dominion, of the defendant company, and the day before its arrival at Philadelphia, about two o’clock in the afternoon, met with an accident on the forward part of the ship, under the following circumstances: She was familiar with the general arrangement of the deck, on which her cabin opened, and was accustomed to being over the different parts of this deck, so as to be well acquainted with the objects on it. With others, she was within a railing that inclosed deck furnishings and equipments, coils of rope and ship necessaries, and she knew that the rail was there as a notice that passengers should not occupy the space beyond it. Within this protected area there was an opening in the deck of about two feet, eleven inches long, and fourteen inches in width, through which a mast of the ship projected. While waiting for other parties, the plaintiff and one of her fellow passengers were engaged in tossing an orange, and in her effort to recover it she “slipped backwards into this hole,” and received the injuries for which she seeks to recover. The passengers had the permissive use of the deck for exercise, and while she was not technically a trespasser where the accident happened, she must be held to the rules governing the use of a place which requires the exercise of care according to the circumstances. Án unsteady deck of a ship on which there [503] are many articles required for efficient service, would naturally require her to take notice of the things she would reasonably see, and when she walked backward in her play, and stepped into an unguarded hole through which a mast of the ship projected, she must be expected to give a better reason than to say she did not know it was there, because she had not looked. Even in walking forward, the rule would require her to be reasonably careful in viewing the place she was to occupy. She knew that this part of the ship was railed off, which was a notice to passengers that it was not free for general promenade purposes. To engage in play in such a place, and conduct herself so that it was not possible for her to see where she was going, was such contributory negligence on her part as to prevent a recovery. The judgment is affirmed.