Balleng v. New York & Cuba Mail Steamship Co.

28 Misc. 238, 58 N.Y.S. 1074

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Leventritt, J.

This action sounds in negligence. The plaintiff was a fireman and coal passer in the defendant’s employ and for five months prior to the injury of which he complains was assigned for duty to its steamship “ Seneca.” One night in Febrm ary, 1899, while the ship was at sea, his hours in the coal bunker were those of the middle-watch, relieving one Peter Hagan who had the night-Avatch. Before beginning work he went into the fireroom secured a lantern, and then, mounting to the betAveen-decks, he climbed through a manhole in the deck and descended into the bunker by means of a ladder. Standing within four feet of the bottom of the ladder, he began shoveling coal doAvn a chute that led into the fireroom. After he had been working for two or three minutes the ladder fell, struck him on the head and inflicted the injuries for which recovery is sought.

It appears that access to the bunker could also be gained by means of a door leading from the engine-room, but that on the alight in question this entrance was, as frequently, obstructed by coal piled against it, and that there was in the bunker just sufficient room to enable plaintiff to perform his work.

The ladder is described by him as portable, made of iron, eight feet long and eighteen inches wide, with the side pieces hooked at the top. The plaintiff states that the ladder was used only when the door was unavailable and that after the body of the coal had been diminished by the labors of one or two watches, it was re* moved; but he asserts that he was under the impression on this occasion that it was securely fastened to the wall of the bunker by means of the hooked ends.

It is not claimed that there was any defect in the ladder, or that it was unsuited for the purpose for which it was intended.

It is apparent that the plaintiff was familiar with the conditions surrounding its use, for during his term of service on the vessel he frequently availed himself of it in entering the bomker. He had, moreover, spent ten years of his life aboard ship as a coal passer.

Although he testifies that it was not his business to adjust the ladder, Peter Hagan, whose time of duty immediately preceded his, flatly contradicts him.

Upon the foregoing state of facts the plaintiff recovered a judgmeait.

This cannot be sustained, as the defendant should have prevailed and its motion to dismiss the complaint should have been granted.

It is difficult to conceive how negligence can be imputed to the master. It had furnished a safe appliance adapted to the eaid designed. The plaintiff met with the accident through the improper use of a proper ladder. The consequences of an insecure fastening, if that condition be conceded, cannot be visited on the defendant. Ho duty rested on it to superintend the adjustment or inspect the fastening of the ladder each time the quantity of the coal in the bunker necessitated its use. That was a detail of the work devolving on those whose employment called them into the bunker. If the fall of the ladder was occasioned by the pitching or rolling of the ship, or by the sliding and sinkiaig of the coal that was a risk of the employment assumed by the plaintiff, and if the maladjustment was due to the carelessness of a coal passer in the preceding watch, or to that of an employee whose particular duty it was to fasten the ladder, that was the negligence of a fellow-servant for which an action would not lie against the master.

A number of cases have arisen in this state in which negligence was predicated on the insecure fastening of ladders, and the master has been exonerated from liability on the principles here enunciated. Donnelly v. Brown, 43 Hun, 470; Marsh v. Chickering, 101 N. Y. 396; Quinn v. Fish, 6 Misc. Rep. 105, 26 N. Y. Supp. 10.

The judgment is without foundation in law and must be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.