Opinion
December 3, 1909.
Martin T. Manton, for the appellant.
Hector M. Hitchings [ Lynn W. Thompson with him on the brief], for the respondent.
The plaintiff appeals from a judgment dismissing the complaint, and from an order setting aside a verdict for $5,000 in an action by the widow and administratrix of Carl J. Blumquist to recover damages for the death of her husband by reason of the defendant's negligence.
The deceased was employed by the defendant, and by the defendant's direction was on board a piledriver chartered by the defendant, and in tow of a towboat hired for that purpose by the defendant. The piledriver, with the deceased aboard, had been towed down the East river from Flushing to a point under the Brooklyn bridge, where it capsized, and the plaintiff's intestate was drowned.
The charges of negligence were (1) the unseaworthiness of the piledriver, and (2) the carrying of the hammer, weighing about 2,000 pounds, high up on the ways of the piledriver, instead of on the deck, thereby making the craft topheavy and easily overturned.
The towboat was hired by the defendant, for the purpose of this towing, from the Hudson Towboat Company, a responsible corporation engaged in that business, and, in view of the disposition we have determined to make of this appeal, it is not necessary to decide whether such company was an independent contractor, in full control of the details of the work so as to relieve the defendant from liability for negligence in relation to the position of the hammer, under the rule of Butler v. Townsend ( 126 N.Y. 105) and Berg v. Parsons (156 id. 109).
The trial court dismissed the complaint on the theory that the plaintiff had not made out a prima facie case, as a matter of law. We are unable to concur in this view, but are of the opinion that the jury should have determined the question of the defendant's negligence, and that there was sufficient evidence to sustain the finding in favor of the plaintiff.
One of the plaintiff's witnesses, Swenson, the owner of the piledriver, called and examined by the plaintiff only as to the hiring, testified on cross-examination that it was seaworthy at the time he chartered it to the defendant, about ten days before it capsized. His testimony may have been weakened in the minds of the jury by the fact that he was the owner, and by the further fact that he had previously been libellant in an action in the United States District Court, wherein he recovered damages from this defendant for the loss of the same piledriver through the defendant's negligence, on the occasion when the controversy in this action arose, and had there testified that his piledriver was seaworthy.
However this may be, the evidence of the plaintiff's witness Johnson, foreman of the defendant company, who inspected the piledriver for the defendant at the time of the hiring, or shortly before, was that the hold was in bad condition, and that he so reported to the defendant. "The wood was soft, it was that soft you could take it in your hands and squeeze it together like a lump of dirt, that is the timbers. She had big seams in; she being calked and then smothered with a coat of paint. By the big seams I mean seams that oakum would not stay into — you couldn't calk it, because the plank is rotten inside and oakum wouldn't stay in the seams; got it right through; never make it water tight, there were about three-quarters of an inch seams, there is about three seams above the water line on them boats; they are about two foot six above the water; I reported the result of my examination to Mr. Hayward. I told him that she was entirely no good for buying, I told of her condition; I told him that her seams were wide and filled with oakum. I told Mr. Hayward I could crumble up her timbers in my hand like dirt." Another witness for the plaintiff, one Nord, who worked on the piledriver for the defendant while it was at Flushing just before the capsizing, testified as to its condition: "I was working on her every day as long as she was there, and she was leaking badly and I got a calking iron and I put the iron clean through her planking through her side. Those seams were three-quarters of an inch; about three-quarters — seven-eighths wide, they were filled with oakum and a little paint outside of it; I put my calking iron through the port side; when she is in tow the stern of the boat becomes the head, because of the slant. The ways are on the aft end of the boat and are heavy. Q. How many times did you calk her during that ten days? A. I think I was trying twice. I pumped her three or four times a day during that ten days. * * * The foreman told me to go there and calk her; his name is Harry Johnson. Not the man who was last on the witness stand; that is another man; he told me to look her over to see if I could find any place she was leaking through. I did; I calked her where I thought the place was. I reported that she was too far gone; I couldn't calk her except to fill the inside all over; too rotten; as soon as I get oakum in a little ways it went clean through; she was rotten on the inside."
The evidence of these witnesses presented a question of fact for the jury as to the defendant's negligence in assigning the deceased to duty on the piledriver. There were peculiar circumstances surrounding the testimony of the witness Swenson, and it was for the jury to say how far they affected his credibility. He was sworn for the plaintiff only to prove the hiring from him of the piledriver, and his testimony as to the seaworthiness of the piledriver was not proper cross-examination; he became the defendant's witness to that extent. The jury saw fit to reject that part of his testimony and to accept that of Johnson and Nord.
One Cassidy was in charge of the bridge the defendant company was building at Flushing, and there is evidence that he ordered the plaintiff's intestate on board of the piledriver as it was about to start for New York on the night it capsized. It was the duty of the defendant to furnish him a reasonably safe place to work, considering the nature of his employment. ( Cullen v. Norton, 126 N.Y. 1.) If the act of Cassidy in directing Blumquist to go aboard the piledriver was one pertaining to the duty of the defendant in this respect, the defendant is responsible. If Cassidy was negligent, this negligence is chargeable to the defendant ( Crispin v. Babbitt, 81 N.Y. 516, 521), and these were facts for the jury to determine.
There is no evidence that the condition of the hold of the piledriver was brought to the attention of the deceased. There is evidence that he was not experienced in this line of work, and that this was known to the defendant's foreman, Johnson. He was alone on the piledriver on the trip down the river and at the time of the capsizing. There is no direct evidence of contributory negligence on his part. So far as appears, he might have used the pumps with reasonable diligence and otherwise safeguarded himself, and under the evidence the jury might properly have drawn this inference. All these facts and circumstances were for the consideration of the jury, and it was for the jury to draw inferences from them in respect to Blumquist's negligence as a contributing cause of his death.
The judgment and order should be reversed and the verdict of the jury reinstated, with costs.
JENKS, BURR and MILLER, JJ., concurred.
Judgment and order reversed and verdict of the jury reinstated, with costs.