MAYER, Circuit Judge
(after stating the facts as above). [1] 1. The first point urged by defendant is that he did not neglect any duty which he owed to plaintiff in regard to the inspection of the pile of dunnage wood, and therefore that the complaint should have been dismissed. There would, of course, have been no duty on the part of defendant, if the defect were a latent one, not discoverable by such an inspection as a reasonably prudent employing stevedore would make under like circumstances. It is now too elementary to require citation of cases that the employing defendant was required to furnish plaintiff with a safe place in which to perform his work and safe implements or tools in connection therewith.
[2] The fact that the dunnage wood was originally piled by the sailors on the vessel is a matter of no consequence. When defendant took charge of the loading of the cement barrels, he at once became the master, both in respect of the place where bis employees worked and the implements or tools (other than those furnished by themselves) with which they worked. Defendant made no inspection whatever of the dunnage, and yet the slightest inspection might have disclosed the fact of the existence of this rotten piece of wood, which was the original cause of the accident which ultimately hurled plaintiff down the hatch.
The case is quite different from Liverani v. Clark & Son, 231 N. Y. 178, 131 N. E. 881. In that case the hoisting falls were hooked into an iron ring bolt fastened in the ship’s deck. During the progress of the work. the ring bolt broke, and the pulley block struck Diverani, causing his death. The defective condition of the ring bolt could have been ascertained according to the testimony of an expert only under the hammer test. The court said:
“Under sueb circumstances, what was the duty which the law placed upon the stevedore with relation to the use of the ship and its parts? In the absence of any condition to excite suspicion, or to suggest defects or danger, the stevedore might assume the safety of the appliances, and that due care had been used by the shipowner to keep and maintain them in reasonably safe condition.”
Having stated the foregoing, the court was careful to point out:
“This does not mean that the stevedore could use the tackle or the ship’s parts blindly and without looking at them, but that, if appearances indicated no danger or defects, an inspection by tests for latent imperfections was not required of it. To expect a stevedore in the absence of these indications to [621]*621minutely examine masts, booms, and bolts, and apply to them expert scrutiny before permitting bis servants to use them, would be unreasonable.” (Italics ours.)
From the foregoing it is plain that the' court did not hold that the stevedore had no duty to make any inspection, but merely that, under the particular facts of the case, certain instructions and refusals to instruct were error. In commenting upon certain parts of the trial court’s charge, the court again indicated that it was directing its attention to the character of inspection which the court below had not properly stated in its charge, for the court said:
‘‘Up to this point the court did not explain what this inspection would consist of, whether it would be a look at the ring bolt to see if it appeared safe, or whether it would be the hammer test, suggested by the expert, which would reveal latent defects.”
In brief, and without further analysis, there is nothing in the 14ver-án i Case, which negatives the necessity of inspection.
[3] The kind and character of inspection applicable to the case at bar is well stated in the extract (noted in the margin)1 from the admirable charge of Judge Grubb in this case. The question on the evidence in this case was one of fact for the jury under proper instructions, and these were given.
[4] 2. It is contended that error was committed when the trial judge charged the jury that, if the plaintiff was knocked into the hold by the falling of the pile of dunnage, then it was for the jury to say whether or not he assumed the risk of such accident. This contention seeks to place plaintiff in a dilemma; the argument being that, if the defect was one which a proper inspection would disclose, then plaintiff necessarily assumed the risk as matter of law. This argument, however, is based upon a misapprehension of the theory underlying the duty of inspection and the theory underlying the doctrine of assumption of [622]*622risk. The duty of inspection arises out of the duty of the master to provide a safe place for the work of the employe, a duty which may not be delegated. The doctrine of assumption of risk rests upon the implied contract of the servant that he assumes responsibility for injuries arising out of a defect “plainly observable,” or “so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” As we have recently noted a tendency to misunderstand the doctrine of assumption of risk which prevails in the national courts, we note in the margin a quotation from Gila Valley Ry. Co. v. Hall, 232 U. S. at pages 101 and 102, 34 Sup. Ct. 229, 58 L. Ed. 521.2
Plaintiff was not called upon to inspect the pile of lumber. He had the right to assume that it was in good order and safe, unless, as above stated, the rotten board was plainly observable, or so obvious that an ordinarily prudent person would have appreciated the defect, and hence the danger. There is a marked difference between the knowledge which an employer acquires through proper inspection and the lack of knowledge of an employé, due to the fact that he has not made an inspection and that he is only chargeable when the defect is of a character which-comes within the definitions of the McDade and Gila Valley Cases, supra. See also Taber v. Davis, 280 Fed. 612, decided by this court February 20, 1922. It was therefore for the jury in the case at bar to-determine from the evidence whether in point of fact plaintiff had assumed the risk of the rotten plank.
[5] 3. It is contended, also, that plaintiff assumed all risk incident to the absence of guards around the hatch, and that the following instruction to the jury of the trial judge was erroneous:
“If lie was knocked into the hold, involuntarily, by the falling of the dun-nage, then you could not say that he assumed the risk of knowing that the-hatch was unprotected. It would have to be shown that he also knew of the danger of being knocked into the hold by the dunnage, because, if he did not know that, then he was assuming no risk of getting into the hold or hatch-by its merely being unprotected. The defendant would have to also show that he knew the danger of being struck by the dunnage.and knocked into-the hold.”
If in the pursuit of his work, plaintiff had tripped or fallen into the hatch, obviously such a result would have been due to one of the risks which was to be expected in connection with plaintiff’s work, and such [623]*623risk, of course, was assumed; but the risk of being unexpectedly-thrown into the hatch, because of the prior unexpected falling of a pile of defective dunnage, due to a rotten board, certainly cannot be regarded as a risk incident to the business of the master and the work of the employe.
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MAYER, Circuit Judge
(after stating the facts as above). [1] 1. The first point urged by defendant is that he did not neglect any duty which he owed to plaintiff in regard to the inspection of the pile of dunnage wood, and therefore that the complaint should have been dismissed. There would, of course, have been no duty on the part of defendant, if the defect were a latent one, not discoverable by such an inspection as a reasonably prudent employing stevedore would make under like circumstances. It is now too elementary to require citation of cases that the employing defendant was required to furnish plaintiff with a safe place in which to perform his work and safe implements or tools in connection therewith.
[2] The fact that the dunnage wood was originally piled by the sailors on the vessel is a matter of no consequence. When defendant took charge of the loading of the cement barrels, he at once became the master, both in respect of the place where bis employees worked and the implements or tools (other than those furnished by themselves) with which they worked. Defendant made no inspection whatever of the dunnage, and yet the slightest inspection might have disclosed the fact of the existence of this rotten piece of wood, which was the original cause of the accident which ultimately hurled plaintiff down the hatch.
The case is quite different from Liverani v. Clark & Son, 231 N. Y. 178, 131 N. E. 881. In that case the hoisting falls were hooked into an iron ring bolt fastened in the ship’s deck. During the progress of the work. the ring bolt broke, and the pulley block struck Diverani, causing his death. The defective condition of the ring bolt could have been ascertained according to the testimony of an expert only under the hammer test. The court said:
“Under sueb circumstances, what was the duty which the law placed upon the stevedore with relation to the use of the ship and its parts? In the absence of any condition to excite suspicion, or to suggest defects or danger, the stevedore might assume the safety of the appliances, and that due care had been used by the shipowner to keep and maintain them in reasonably safe condition.”
Having stated the foregoing, the court was careful to point out:
“This does not mean that the stevedore could use the tackle or the ship’s parts blindly and without looking at them, but that, if appearances indicated no danger or defects, an inspection by tests for latent imperfections was not required of it. To expect a stevedore in the absence of these indications to [621]*621minutely examine masts, booms, and bolts, and apply to them expert scrutiny before permitting bis servants to use them, would be unreasonable.” (Italics ours.)
From the foregoing it is plain that the' court did not hold that the stevedore had no duty to make any inspection, but merely that, under the particular facts of the case, certain instructions and refusals to instruct were error. In commenting upon certain parts of the trial court’s charge, the court again indicated that it was directing its attention to the character of inspection which the court below had not properly stated in its charge, for the court said:
‘‘Up to this point the court did not explain what this inspection would consist of, whether it would be a look at the ring bolt to see if it appeared safe, or whether it would be the hammer test, suggested by the expert, which would reveal latent defects.”
In brief, and without further analysis, there is nothing in the 14ver-án i Case, which negatives the necessity of inspection.
[3] The kind and character of inspection applicable to the case at bar is well stated in the extract (noted in the margin)1 from the admirable charge of Judge Grubb in this case. The question on the evidence in this case was one of fact for the jury under proper instructions, and these were given.
[4] 2. It is contended that error was committed when the trial judge charged the jury that, if the plaintiff was knocked into the hold by the falling of the pile of dunnage, then it was for the jury to say whether or not he assumed the risk of such accident. This contention seeks to place plaintiff in a dilemma; the argument being that, if the defect was one which a proper inspection would disclose, then plaintiff necessarily assumed the risk as matter of law. This argument, however, is based upon a misapprehension of the theory underlying the duty of inspection and the theory underlying the doctrine of assumption of [622]*622risk. The duty of inspection arises out of the duty of the master to provide a safe place for the work of the employe, a duty which may not be delegated. The doctrine of assumption of risk rests upon the implied contract of the servant that he assumes responsibility for injuries arising out of a defect “plainly observable,” or “so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” As we have recently noted a tendency to misunderstand the doctrine of assumption of risk which prevails in the national courts, we note in the margin a quotation from Gila Valley Ry. Co. v. Hall, 232 U. S. at pages 101 and 102, 34 Sup. Ct. 229, 58 L. Ed. 521.2
Plaintiff was not called upon to inspect the pile of lumber. He had the right to assume that it was in good order and safe, unless, as above stated, the rotten board was plainly observable, or so obvious that an ordinarily prudent person would have appreciated the defect, and hence the danger. There is a marked difference between the knowledge which an employer acquires through proper inspection and the lack of knowledge of an employé, due to the fact that he has not made an inspection and that he is only chargeable when the defect is of a character which-comes within the definitions of the McDade and Gila Valley Cases, supra. See also Taber v. Davis, 280 Fed. 612, decided by this court February 20, 1922. It was therefore for the jury in the case at bar to-determine from the evidence whether in point of fact plaintiff had assumed the risk of the rotten plank.
[5] 3. It is contended, also, that plaintiff assumed all risk incident to the absence of guards around the hatch, and that the following instruction to the jury of the trial judge was erroneous:
“If lie was knocked into the hold, involuntarily, by the falling of the dun-nage, then you could not say that he assumed the risk of knowing that the-hatch was unprotected. It would have to be shown that he also knew of the danger of being knocked into the hold by the dunnage, because, if he did not know that, then he was assuming no risk of getting into the hold or hatch-by its merely being unprotected. The defendant would have to also show that he knew the danger of being struck by the dunnage.and knocked into-the hold.”
If in the pursuit of his work, plaintiff had tripped or fallen into the hatch, obviously such a result would have been due to one of the risks which was to be expected in connection with plaintiff’s work, and such [623]*623risk, of course, was assumed; but the risk of being unexpectedly-thrown into the hatch, because of the prior unexpected falling of a pile of defective dunnage, due to a rotten board, certainly cannot be regarded as a risk incident to the business of the master and the work of the employe. The argument for the defendant loses sight of the primary cause of the accident, to which we must always return for a clear understanding of the results which flowed from that primary cause.
While the McDade, Gila Valley, and Taber cases, supra, were railroad cases, the Supreme Court nevertheless laid down or restated the general principles of assumption of risk. In referring to the charge of the trial court in the McDade Case, Mr. Justice Day pointed out that the charge was more favorable to the railroad than the law required, as it exonerated the railroad from fault, if, in the exercise of ordinary care, the employé might have discovered the danger, and he said:
“Upon this question the true test is not in the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employ'd.”
In the case at bar, the defect was not known, and in view of the fact that the question was one for the jury, as we hold, supra, we must assume that it cannot be said as matter of law that the defect was plainly observable by plaintiff. Falling down the hatch was thus due to an unknown, and, according to the verdict, an unobservable, defect, and to say that an employee assumes the risk of falling down an open hatchway, due to an unknown and unobservable defect or danger, would be to introduce a novel doctrine into the law, and one opposed to the steady modern trend of judicial decision.
4. It is also contended that error was committed in charging the jury that, if plaintiff was guilty of contributory negligence, such contributory negligence only went to the question of reduction of damages, and in refusing to charge the jury that, if the plaintiff did not exercise reasonable care, he could not recover. The court fully and properly charged the jury as to the necessity of finding defendant guilty, of negligence before plaintiff could recover, and as to the assumption of risk. So far as we are aisle to ascertain, there was no evidence of contributory negligence, and this part of the court’s charge was doubtless due to extra caution. The question of contributory negligence seems on this record to be academic.
[6] In any event, however, the tort in the case at bar was a maritime tort, which might have been the subject-matter of admiralty jurisdiction. That the locality of a tort determines whether or not it is maritime is now so well settled that it is necessary only to refer to Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157.
[7] In The Max Morris, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586, it was held that, where a person is injured on a vessel through a maritime tort arising partly from the negligence of the officers of the vessel and partly from his own negligence, and sues the vessel in admiralty for damages for his injuries, he is not debarred from all recovery [624]*624because of the fact that his own negligence contributed to his injuries. Carter v. Brown, 212 Fed. 393, 129 C. C. A. 69.
[8] The right to recover irrespective of contributory negligence is a right, and not a matter of procedure, nor is it governed by the choice of the forum. In the case at .bar, plaintiff has sought his remedy at common law to obtain redress arising out of a maritime tort. He entered the common-law court with the same right as he would have entered the admiralty court. That was the right to recover, irrespective of his own negligence, provided, of course, he could show the negligence of his employer, and this right of plaintiff sprang into existence because he suffered a maritime tort. The trial judge was peculiarly familiar with the question, for it was he who wrote the opinion in Carter v. Brown, supra, and our view is that his charge as to contributory negligence was sound.
There are no other questions which, in our opinion, require comment.
Judgment affirmed.