Browski v. Delaware, L. & W. R. Co.
| Decision Date | 04 March 1919 |
| Citation | 106 A. 369 |
| Parties | BROWSKI v. DELAWARE, L. & W. R. CO. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Action by Frank Browski against the Delaware, Lackawanna & Western Railroad Company. From a judgment for the defendant on a directed verdict, plaintiff appeals. Affirmed.
Charles W. Broadhurst, of Jersey City (Charles E. Corbin, of Jersey City, of counsel), for appellant.
Frederic B. Scott, of New York City, for respondent.
The plaintiff in the court below appeals to this court from a judgment entered on a verdict directed for the defendant by the trial judge. The only question presented for consideration is whether there was error in this.
The plaintiff's action was brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]).
The facts are these: The plaintiff at the time he was injured was 52 years of age, and was in the employ of the railroad company as a laborer on its docks at Hoboken. He performed whatever manual labor he was directed to do. At the time he received his hurt he was engaged in helping a gang of men which was at work unloading bags of seed from a boat which was moored to the railroad company's dock, known as pier No. 4. The unloading was done by trucks which were required to be pushed upon and over boards or gangplanks from the boat to the pier, and the character of the work assigned to the plaintiff was to meet loaded trucks as they came along on the deck from the rear of the boat, and help push them, on the boards, which task described in his own language:
"It was hard to get up on these boards, and we had to help push them up."
The plaintiff further testified that he was placed on that part of the boat by the checker, and was told by him to remain there. The side of the boat on which the trucks were being propelled appears to have been lighted. The plaintiff says that as he was on his way to meet the last truck a fellow came along with a hand truck, so the plaintiff started lo get out of the way, but it was hard to pass because there was such a large crowd. He saw a doorway leading into a passage which was dark, and at the same time saw the lights of burning cigarettes inside, and he entered there, proposing, as he says, "to make simply a short cut," when he fell into the engine or boiler room. In the passage, entered by the plaintiff, there was an opening which, by means of a ladder, gave ingress to the boiler or engine room below. It was into this opening that the plaintiff fell.
The negligence averred in the complaint is, in substance, that the defendant by its servants negligently left a hatchway on the boat open, and negligently failed to provide a proper light near or around the hatchway, so as to enable the plaintiff to see that the hatchway was open, and that through such negligence the plaintiff fell into the hatchway, and was injured. Giving to the averment a broad signification, it practically charges the master with having failed to use reasonable care to provide the plaintiff, its servant, with a reasonably safe place to work in. The particular breach of duty alleged against the master is leaving a hatchway open which was not visible to the plaintiff, because of the absence of proper lighting.
If the plaintiff produced any testimony or circumstance, no matter how slight, tending to establish the breach of duty alleged, of course he was entitled to have his cause submitted to the decision of the jury. A careful examination of the testimony and circumstances fails to show this. When the case was closed there was no proof that there was any hatchway left open, or that there was any opening on the deck of the boat where the plaintiff was required to do his work, and where he was told to remain. Moreover, it appeared by the plaintiff's own testimony that he was not injured on the deck of the boat where he was set to work, but that he received his hurt after he left there, and...
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