Huebner v. Hammond

LAUGHLIN, J. It could not be said as matter of law that the decedent wias guilty of contributory negligence. That was a question for the jury, and should have been submitted to the jury if there was evidence tending to show negligence on the part of either of the defendants. [297] The first question to be considered is whether the decedent’s employer owed him any duty the failure to perform which caused or contributed to his death. The appellant contends that the respondent company is ■ liable under the rule requiring the master to exercise reasonable care in providing for his servants a safe place in which to perform their duties, and, manifestly, this is the only ground upon which it could be argued that liability should be predicated; for if the boss stevedore was negligent in giving the order the master would not be liable. Keenan v. Railroad Co., 145 N. Y. 190, 39 N. E. 711, 45 Am. St. Rep. 604. We are of opinion, however, that the facts do not bring the case within that rule. It was a temporary place of employment at most, and it was not furnished by the employer. The lighter was neither owned nor controlled by the employer. The decedent was as well aware as his master that no inspection had been made by the latter of the condition of the deck of the lighter before the decedent and other longshoremen were directed to go aboard. It would be an unreasonable extension of the rule to hold the master liable for a failure to inspect the deck of the lighter before allowing his employés to go aboard for the purpose of performing temporary duty thereon. The facts, we think, bring the case within the doctrine of risks assumed by employés. Moy v. Steamship Co. (Super. Ct.) 33 N. Y. Supp. 563; Dixon v. Telegraph Co. (C. C.) 68 Fed. 630, the doctrine of which was approved by McGuire v. Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; Hart v. Naumburg, 123 N. Y. 641, 25 N. E. 385. The question of whether the respondent Hammond owed a duty to the decedent and was guilty of actionable negligence is not free from doubt. I am of opinion, however, that the decedent was rightfully upon the lighter in the performance of a duty which he owed to his employer. In view of the custom and of the act of the captain in taking the decedent aboard, he was there by the consent or implied invitation of the owner of the lighter from which arose the duty_ of reasonable care, to see that he sustained no injury from a negligent condition or concealed trap in the deck of the vessel. Stastney v. Railroad Co. (Super. N. Y.) 18 N. Y. Supp. 800; Shear. & R. Neg. (5th Ed.) § 183; Thompson, Comm. Neg. § 985; Wright v. Railway Co., 1 Q. B. Div. 252; Railway Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333, 54 Am. Rep. 803. Although the decedent was aiding in the performance of a duty which devolved on the owner of the lighter, he was not a mere volunteer for the benefit of the lighter owner only, for his primary object was to expedite his employer’s business. The owner of the lighter owed a duty to his employés, and to those coming on board the lighter on business by his invitation or consent, express or implied, to use reasonable care to maintain this grating in a safe condition or to warn them of the danger. Newell v. Bartlett, 114 N. Y. 399, 21 N. E. 990; Fogarty v. Bogart, 43 App. Div. 430, 60 N. Y. Supp. 81; Delaney v. Railroad Co., 78 Hun, 393, 29 N. Y. Supp. 226; Griffin v. Manice, 160 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922; Dunn v. Durant, 9 Daly, 389; Coughtry v. Mills Co., 56 N. Y. 124, 15 Am. Rep. 387. The evidence, being undisputed that it was in place, and that it tipped up [298] when stepped upon, would justify a finding that this duty was not performed, and that it constituted a trap dangerous to those passing over the deck. Patterson v. Hochster, 38 App. Div. 398, .56 N. Y. Supp. 467; Cheevers v. Steamship Co., 26 Misc. Rep. 193, 55 N. Y. Supp. 445; Dunn v. Durant, 9 Daly, 389; Lentino v. Iron Ore Co., 71 App. Div. 466, 75 N. Y. Supp. 755; Bartnik v. Railroad Co., 36 App. Div. 246, 55 N. Y. Supp. 266. The relation of master and servant did not exist between the decedent and the owner of the lighter, and the former did not assume the risk of injuries from the negligence of the employé of the latter. Shear. & R. Neg., supra; Thompson, Comm. Neg. § 985; Wright v. Railway Co., supra; Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673; Railway Co. v. Bolton, supra. Moreover, it would seem that the negligence was not the negligence of Hammond’s employés, but that of himself in failing to exercise reasonable care in the construction or inspection and repair of this manhole and the grating. The decedent was not informed of the defective condition of the grating, and the same was not open and obvious; therefore Hammond would not be relieved of liability, even if the decedent were to be regarded as constructively in his employ. I am of opinion, therefore, that the judgment should be affirmed as to the Hamburg-American Packet Company, with costs, but reversed, and a new trial granted, as to the respondent Hammond, with costs to appellant to abide the event. O’BRIEN, J., concurs.