#### James Cheevers, Respondent, *v.*The Ocean Steamship Co., Appellant.

(City Court of New York, General Term,

January, 1899.)

Negligence — Failure to furnish employee a safe place.

Proof that an employee was injured because, while running a truck through the gangway of a vessel, the iron cover, of a bunker-hole in the floor of the gangway, tipped up, not having been properly put in place, and caused a piece of timber to fall upon him, sufficiently indicates that the master has pot performed his duty of furnishing his employee with a safe and proper place in which to work.

*194Appeal from a judgment in favor of plaintiff, entered upon a verdict*.*

Davies, Stone & Auerbach (Julien T. Davies, Herbert Barry and E. C. Kindleberger, of counsel), for appellant.

Milliken *&*Gasten (John W. Brainsby, of counsel), for respondent.

Fitzsimons, Ch. J.

The defendant employed the plaintiff to help unload one of its boats. To do his work, the plaintiff was obliged to pass along a gangway with the truck used by him. This gangway was a long and narrow way and had a bunker-hole made just in the path 'along which plaintiff needed to go while doing his work. The bunker-hole had an iron cover which was flush with the deck, and while passing over the hole, the cover tipped up, causing a piece of timber to fail upon plaintiff, injuring him.

Undoubtedly in this instance, it was the duty of the defendant to furnish the plaintiff a safe and proper place in which to do his work. He had a right to assume that the passage-way in question was safe.

There is no charge made by the defendant that the plaintiff was guilty of contributory negligence, and the only question for us to consider is, *“*was the defendant guilty of contributory negligence? ”

The testimony .even of the defendant’s witnesses proves that if the cover of the bunker-hole was properly set in its place, that the running over of it by the truck used by the plaintiff would not have caused it to tilt up as it did, but that it would SO' tilt up>, if the flange upon which it rested was twisted or broken, or if some substance, such as coal dust or pieces of coal rested upon such flange, thus preventing the cover from fitting down properly.

H the injury was caused by any such reason, then in .our judgment the duty of the defendant to furnish to the plaintiff a safe place to do his work was not performed by it; besides it appears in the defendant’s testimony, that if the cover rested properly upon its flange, that it could not have been displaced by the truck passing over it. ■ It,' therefore, seems to us as a logical sequence (accepting said testimony to be true), that something must have been between the flange and the cover.

This being true, we think it was proper for the trial judge to submit to the jury the question of the defendant’s negligence in allowing such a state of affairs to exist. It was the duty of the defendant to see to it that the passage was safe and sound, including the cover of the hole in question.

*195These considerations induce us to believe that the trial justice was right in submitting to the jury the question of the defendant’s negligence and their finding in the affirmative was justified by the evidence.

Finding no error, the judgment must be affirmed, with costs.

Olcott, J., concurs.

Judgment affirmed, with costs.