#### HUEBNER v. HAMMOND et al.

(Supreme Court, Appellate Division, First Department.

February 6, 1903.)

1. Negligence — 'Master and Servant — Place to Work.

Where a longshoreman employed by a steamship company in loading a steamer was ordered by the foreman to go onto a barge not belonging to such company, and assist in hauling it alongside, where its load could be transferred to the steamer, and in obeying such order the man stepped on a grate covering a hole in the deck of the barge, when the grate slipped, injuring him so that he died, such steamship company was not negligent because of the condition of the deck of such barge, or in' not inspecting such deck before sending such man onto the barge.

2. Same — Volunteer on Vessel — Duty of Owner.

Where the owner of a barge, containing a load to be transferred to a steamer, furnished a sufficient number of men to put the barge in place, he owed no duty to an employé of the steamship company who was ordered by his boss to go onto the barge and assist in hauling it into position, and who in doing so stepped on a grate covering a hole in the deck, and by reason of the grate slipping was injured so that he died, and such owner was not liable for damages for such injury.

Laughlin and O’Brien, JJ., dissent in part

Appeal from trial term, New York county.

Action by Marie Huebner, as administratrix of the estate of Otto Huebner, deceased, against George L. Hammond and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a statutory action, based upon the statute of New Jersey, which is similar to that in this state, to recover for the death of Otto Huebner, alleged to have been caused by the negligence of the defendants. The decedent was in the employ of the respondent company as a. longshoreman, and had worked in that capacity for several years. On the morning of the 8th of May, 1902, the Patricia, a steamship owned by the respondent company, was lying at the .south side of Pier No. 1, the northernmost of three piers on the Hudson river, in Hoboken. The decedent and eight or nine other longshoremen had been engaged in transferring a cargo of lead from a lighter or barge to the Patricia. The Excelsior, a lighter owned by the respondent Hammond, was lying in the same slip or basin along the north side of Pier No. 2, loaded with a cargo of rosin to be transferred to and shipped by the Patricia. She was awaiting the unloading of the cargo of lead, and her cargo was to be unloaded into the Patricia at the place occupied by the lead lighter. The Excelsior was square at both ends, and had no propelling power. The rosin was in barrels which lay in tiers upon the deck, covering the entire deck, except a space of about eight feet at either end. *296The crew of the Excelsior consisted of only two men, a master or captain and an assistant or .mate. As the longshoremen finished unloading the lead, the boss stevedore, also in the employ of the respondent company, Ordered the captain of the Excelsior “to come alongside next,” find ordered the decedent and other longshoremen to remain on the lead lighter, which was being pulled away by lines attached to Pier 2, and go aboard the Excelsior for the purpose of aiding the captain and mate in pulling her alongside the Patricia and of then unloading the cargo. There was some conflict in the evidence as to the manner in which the Excelsior was being pulled over to the Patricia, but there was evidence tending to show and justifying the inference that one line had been thrown from the bow and another from the stern of the Excelsior and made fast to the Patricia; that the captain was at one end, and the mate at the other, pulling on these lines; that the boss stevedore then called to the captain of the Patricia to pull up to the lead lighter, and take the stevedores aboard, which he did; that the stevedores came aboard the Excelsior at or near the stern or bow; that some of them proceeded to assist in pulling in the bowline, and others, among whom was the decedent, passed to the middle of the Excelsior; that the boss stevedore then further ordered the longshoremen to give. the captain and mate a hand in bringing the Excelsior alongside, and the decedent and others started for the stern, evidently intending to comply with the order. As the decedent stepped down from the barrels to the clear part of the deck he stepped upon a grating covering a manhole in the deck for ventilating purposes, which was about the size of an ordinary coal hole in a sidewalk. The grating tilted up edgewise, letting one foot through, and, the other foot passing down the other side, the decedent landed astride the upturned edge of the grating, inflicting injuries which caused his death. There was a tight cover for use over the grating at times when it was not necessary to have it open for ventilating purposes, but it was off at the time in question. This was an iron grating, the thickness of which does not appear. It rested on an iron flange three-quarters of an inch below the surface of the deck, and about half an inch wide. The undisputed evidence showed that the grating was in place at the time the decedent stepped upon it, so that it appeared all right, but it was smaller than the frame in which it set. The only direct evidence as to the condition of the grating when in place was the testimony of one witness, who first testified that there was a play of about a quarter of an inch all around it when placed in the center, but he subsequently testified that the entire play was only a quarter of an inch. The grating was not fastened in any manner, and the undisputed evidence is that although in place it did slide and tip up when the decedent stepped upon it. The testimony of the captain and mate indicated that they could have brought the lighter alongside the steamship without any assistance from the longshoremen; but it appears that they were making slow progress, and it would have taken them much longer to do so unassisted. It also appears that they were further aided by having their stern line, which was fast to Pier 2, thrown off by an employs of the respondent company by direction of the boss stevedore. It was also shown that it was the general custom in such cases for the longshoremen to assist in this manner in bringing the lighters alongside.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

Perry D. Trafford, for appellant.

Frank C. Avery, for respondent Hammond.

Fred. E. Fishel, for respondent Hamburg-American Packet Co.

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.

*297The 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 *298when 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.

McLAUGHLIN, J.

(dissenting). I concur with Mr. Justice EAUGHÉIN in so far as he holds that the judgment dismissing the complaint against the steamship company should be affirmed, but I dissent from his conclusion that the judgment should be reversed and a new trial ordered as to the defendant Hammond. The facts, so far as they are material to him, are as follows: He was the owner of the lighter Excelsior, on which was a cargo of rosin, which was to be delivered alongside of a ship belonging-to the defendant steamship company. The lighter had a crew consisting of two men, employés of Hammond, whose duty it was to bring the lighter alongside of the ship and make it fast. On the 8th of May, 1900, these employés were in the performance of that duty, and the uncontradicted evidence is to the effect 'that they -were able to perform it without any assistance, and that they made no request for assistance from any one. Notwithstanding this fact, the intestate and other employés of the steamship company were directed by their foreman to go aboard the lighter, and assist in placing her alongside the ship. This was no part of their duty, which consisted in “slinging the barrels” of rosin from the lighter, after it had been made fast, onto the ship. In pursuance of this direction the intestate jumped onto the barrels of rosin which were piled on the deck of the lighter, and then jumped from there to the deck, and, as he did so, he stepped upon an iron grating covering a manhole in the deck, which turned, and he came astride of it, and was so injured that *299he died shortly thereafter. There was no dispute between the parties as to the construction or condition of the manhole. It was a round opening in the deck, used for ventilating purposes, into which was set an iron rim about 16 inches in diameter, having an iron flange or edge upon its lower part, of something like one-half an inch in width. In the rim was set an iron grating, which rested on the flange. It did not fit tightly. There was a play of about one-eighth of an inch all around between the outside edge of the grating and the inside edge of the flange. The grating was not fastened in any way to the rim, but could be lifted out as occasion required. There was also provided an outer iron cover, which was not in place when the accident occurred, but just when or by whom it was removed did not appear. There was no evidence to the effect that either the manhole, rim, grating, or cover were faulty in construction or that they were different from those used for a like purpose on similar boats. Nor was there any evidence that at the time the accident occurred any part of them was broken or out of repair, or prior to the time the intestate was injured that anything had occurred to indicate that an accident similar to the one which befell the intestate could possibly happen.

This being the situation at the close of plaintiff’s case, I am unable to see how the trial court could do otherwise than dismiss the complaint as to the defendant Hammond.

First. The defendant Hammond owed the intestate no duty. He was not in the employ of Hammond, but of the steamship company, and when he went aboard the lighter he did so,- not at the request of Hammond, but solely at the suggestion or by the direction of his employer. He was on the lighter, at most, by the implied sufferance or license of Hammond, and not by his invitation, either express or implied. The lighter, as already said, was manned with sufficient men to place her alongside, preparatory to the rosin being taken from her and put on the ship. No assistance was necessary for that purpose, nor was any requested. Nor do I think there was any evidence to go to the jury that it was customary, under such circumstances, for the employés of the steamship company to go on board •the lighters when they were being brought alongside. The defendant Hammond, therefore, was under no obligation whatever to protect one against injury who might voluntarily go upon the boat out of curiosity, or to further his own or his master’s business. Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718; Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594.

Second. But if it be held that Hammond owed the plaintiff’s intestate a duty to- provide him a reasonably safe place to do his work, when directed to go onto the lighter by the steamship company, even then it seems to me the plaintiff failed to establish a cause of action. To establish liability on the part of Hammond, the plaintiff was bound to prove that the manhole, rim, grating, or cover was, in the first instance, improperly constructed, or else had become defective and out of repair, and that the defendant had notice of such defects, or by the exercise of reasonable care could have discovered *300them. This proposition is elementary, and the citation of authorities is unnecessary. Here there was absolutely no evidence which would have justified a finding that there was any act of omission or commission on the part of Hammond in this respect. It is true the suggestion is made that the grating did not fit tightly in the rim, that there was a space of about one-eighth of an inch all around it, and that this may have been the cause of its tipping; but it seems clear this could not have been the cause if the grating was in place when the intestate jumped, and the flange was one-half an inch wide. Nor is it apparent how the outer covering could have had any effect upon its tipping, and, if it could, I do not see how that could be held as a negligent act so far as Hammond is concerned, because it appears that only a short time before the accident occurred this covering was in place, and when it was removed, or by whom, does not appear. The truth is, no one knows, so far as this record shows, just how the accident occurred, or what was the cause of it; and to have sent the case to the jury in the condition in which the evidence was at the close of the trial would have been simply to permit them to guess and speculate upon that subject, and possibly to infer from the fact that an accident had occurred that it was due to some omission of duty on the part of Hammond. This would have been insufficient to have sustained a verdict.

For these reasons I think the judgment should also be affirmed as to the defendant Hammond.

VAN BRUNT, P. J., and PATTERSON, J., concur.