La Compagnie Generale Transatlantique v. Maguire , 168 F. 34 ( 1909 )

RACOMBE, Circuit Judge

(after stating the facts as above). This action is brought under the employers’ liability act of the state of New York, chapter 600, p. 1748, Raws 1902. The first section provides that the employer shall, under certain conditions, be liable when personal injury results—

“b.v reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition.”

The first contention of defendant is that the injury did not result “by reason of any defect in the condition of the ways, works or machinery.” Many cases are cited in which such structures as a scaffolding for workmen to work upon have been held to be “appliances” rather than “'places to work.” None of these are applicable, because they were concerned solely with the common-law relations of master and servant, and not at all with the construction of this statute. The hatch cover was a portion of the gangway over which the truck was to be wheeled back and forth between the place where the sling descended and the wings; it would be difficult to find anything which was more emphatically a “way” to be kept in proper condition.

It is next assigned as error that the court refused to direct a verdict in favor of the defendant on the ground that no negligence on the part of defendant was shown. We are satisfied that it was a proper qisestion for the jury to determine whether defendant was reasonably prudent in providing a hatch cover of this length, which when in place would become a part of the deck and would necessarily be required to support heavy weights, without giving it the measure of support which was secured to the other parts of the same deck. The trial judge did not improperly apply the doctrine of res ipsa loquitur to an unexplained catastrophe, which upon the proofs no one could account for, or which might be accounted for on several different theories under one or more of which the master would not be in fault. The proof shows that the planks used for the hatch cover were put in place properly in the usual way, and that they gave way under the combined weight of the two workmen, the truck, and the 20 sheets of copper, manifestly because no strong-back had been provided by the master, thus leaving those planks unsupported for eight feet when no other planks on the same deck were left unsupported for more than four feet. The defendant called no witnesses, so we have no evidence that the structure had for months or years proyed itself to be sufficient to meet all strains which it might reasonably be expected to bear. For aught that appears, this style of hatch cover for the orlop deck, having no strong-back support, might have been put to use for the first time during the single discharge and loading with which the plaintiff was concerned.

Defendant has argued at some length on assumption of risk and contributory negligence points which were not presented either by motion to direct, nor by exceptions to the charge. In fact no exception to the charge — a very full and careful one — was reserved.

‘ Finally, error is assigned to the “admission of testimony of a custom of other shipowners to use strong-backs.” In response to a question as to what was the usual and ordinary way of constructing a hatch, Brady, who had been working as a stevedore all over New York Harbor for 25 years, replied that there was always a strong-back to support the center of the hatch. Objection was made and exception was reserved to the allowance of this question. But if there were error.in allowing it — as to which we express no opinion — it was harmless, because the same witness had some time before stated without objection or exception:

“The beams are four feet apart, and this hatch is eight feet apart. In other vessels there is a strong-back in the center of that before you put on the plank for security.”

No motion was made to strike out this testimony, nor was the court asked to instruct the jury to disregard it.

The points raised as to excessive damages and as to motion for new trial cannot be considered in this court.

Judgment affirmed.