Hart v. North German Lloyd Steamship Co. , 92 N.Y.S. 338 ( 1905 )

Scott, J.

It must, I think, be conceded that defendant’s responsibility to plaintiff’s assignor was similar to that of an innkeeper, and consequently that it is responsible for the loss as insurer, unless plaintiff’s assignor was himself guilty of negligence which was a proximate cause of the loss. Adams v. N. J. Steamboat Co., 151 N. Y. 163. I am quite 'unable to see that Mr. Harrison was guilty of any negligent act whatever, and, if the fact that he left the shirt hanging on a hook with the studs in it was negligent, it-was not the proximate cause of the loss, for after Mr. Harrison had left his room, Hepach, the cabin steward and defendant’s servant entered the room and saw the shirt hanging with the studs in it. If, owing to the fact that the ship was lying in the harbor of Naples, it was especially unsafe to leave the port hole open and the door unlocked, the steward should have known that fact and should have taken pains to close the port hole and lock the door. It is suggested that while it might not be negligent to leave a port hole open and a door unlocked while at sea, it was so- to have omitted those precautions while in the port of Naples. Even if this were so there is nothing in the case to show that the loss occurred from any cause that was especially operative in the bay of Naples and would not be operative on the high seas. Of course the plaintiff’s assignor might have done a great many things which would have rendered the loss of his studs more improbable, he might have put them in his trunk, or had them put in purser’s safe, or have worn a shirt that fastened with ordinary buttons, instead of studs. But in my opinion he was not bound .to do anything of the sort, and I am confident that the very many persons who constantly embark on sea voyages would be greatly surprised, and reasonably so, if it were to be established as the law that a duty rested upon them to lock up their staterooms every time they had occasion to leave them. Certainly it was not negligent for the passenger to take his valet ashore with him, instead of leaving him on guard to watch his room, for that was the duty of the steamship company. In my opinion the evidence fails to show that plaintiff’s assignor was guilty of any negligence which contributed to the loss, and the judgment should be reversed and a new trial granted with costs to appellant to abide the event. •