Liverani v. John T. Clark & Son

• Decision Date: 03 May 1921
• Citation: 131 N.E. 881,231 N.Y. 178
• Parties: LIVERANI v. JOHN T. CLARK & SON et al.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 178

131 N.E. 881

LIVERANI

v.JOHN T. CLARK & SON et al.

Court of Appeals of New York.

May 3, 1921.

Action by Louisa Liverani, as administratrix of Orreste Liverani, deceased, against John T. Clark & Son, impleaded with Bay Steamship Company of America, Limited. From judgment of the Appellate Division, unanimously affirming judgment of the Trial Term, entered on a verdict of a jury in favor of the plaintiff (191 App. Div. 337,181 N. Y. Supp. 696), defendant John T. Clark appeals by permission.

Judgments reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Second Department.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellant.

Cass & Apfel, of New York City (Quinto J. Porcella, of New York City, of counsel), for respondent.

CRANE, J.

John T. Clark & Son, the appellant corporation, was a contracting stevedore engaged in loading bags of sugar into the steamship Sarnia moored at the foot of Court street, borough of Brooklyn, city of New York, on the 21st day of June, 1916. The hoisting falls were hooked into an iron ringbolt fastened in the ship's deck. The ring was made of one-inch metal, with a stem extending through two decks, and clinched with a rivet underneath. During the progress of the work the ringbolt on the deck of the vessel broke at or a little below the surface of the deck, and the pulley block struck Orreste Liverani in the back, causing his death. The deceased was an employee of John T. Clark & Son, and engaged in loading the cargo. Judgment has been entered upon the verdict of a jury against the employer and the Bay Steamship Company of America, Limited, the owner of the vessel, for the damages sustained by the next of kin, the basis of the recovery being the negligence of the two defendants. The employer, John T. Clark & Son, appeals to this court from the unanimous affirmance of the judgment.

The point raised by the appeal is the duty of inspection which by the charge of the court was placed upon the employer.

The ringbolt, as before stated, was a part of the ship, a permanent structure to be used in such work as John T. Clark & Son was doing. The booms, pulleys, falls, guys, and hooks necessary for loading the cargo belonged to the ship; the stevedore furnishing only the canvas slings for carrying the sugar bags.

[1] Under such 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. Kirk v. Sturdy, 187 Mass. 87, 72 N. E. 349;O'Doherty v. Postal Telegraph-Cable Co., 134 App. Div. 298,118 N. Y. Supp. 871. 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 minutely examine masts, booms, and bolts, and apply to them expert scrutiny before permitting his servants to use them, would be unreasonable. This rule has been recognized in this case by counsel for the respondent, and it is claimed by him that the condition of the ringbolt was such as to give notice of defects to the stevedore, requiring further examination than was made by it. There is evidence that the ringbolt was badly rusted, that the deck around the ringbolt was old and marked with iron rust, and an expert gave it as his opinion that under the hammer test the crack or defect in the shank of the ringbolt near the surface of the deck could have been detected. This being the condition and the evidence, we now turn to the charge of the court.

‘I charge you, as the law in this case,’ said the learned trial justice, ‘that Clark & Son cannot rest upon the steamship company performing its duty of inspection of an appliance which Clark & Son were going to use in the performance of their business. * * * The duty of the master to inspect the materials or the machinery and appliances used by his servants in the course of his business extends, not only to those things which are his property or furnished by him, but equally also to all things which it becomes the duty of his servants to use in the course of their employment. * * * I am bound under the law to inspect and examine these things to determine or discover if I can defects in them, and to repair such defects or avoid their use if reasonable care required that. Reasonable care in a case of this kind always involves reasonable inspection. It involves proper inspection.’

[2] Up to this point the court did not explain what this inspection would consist of, whether it...