Hardie v. New York Harbor Dry Dock Corporation

• Decision Date: 16 November 1925
• Docket Number: No. 79.,79.
• Citation: 9 F.2d 545
• Parties: HARDIE v. NEW YORK HARBOR DRY DOCK CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 545 (1925)

HARDIE v. NEW YORK HARBOR DRY DOCK CORPORATION.

No. 79.

Circuit Court of Appeals, Second Circuit.

November 16, 1925.

Richard H. McIntyre, of New York City (Wesley M. Messersmith, of New York City, of counsel), for plaintiff in error.

A. G. Maul, of New York City (John McK. Minton, Jr., of New York City, of counsel), for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

We cannot see that the defendant failed to furnish the intestate with a safe way to his work. The route over the bridge deck was certainly such, and it was obviously open to those who did not care to use the dark route over the main deck between door and door. Two of the intestate's fellows had used it before him, and it was a compliance with the master's duty to furnish a safe way. If there be two ways, one safe and the other dangerous, the servant chooses the dangerous way at his peril, if the difference is known to him. Beulah Coal Co. v. Verburgh, 292 F. 34 (C. C. A. 8); Williams Cooperage Co. v. Headrick, 159 F. 680, 86 C. C. A. 548 (C. C. A. 8); The Indrani, 101 F. 596, 41 C. C. A. 511 (C. C. A. 4).

It seems to us beyond any fair difference of opinion that the intestate knew the safe way and the possible dangers of the other. He was 51 years old, for over 30 years had worked about ships on their engines and boilers, and had worked nowhere else. In the absence of any proof to the contrary, to say that at a glance he did not see that he could have gone over the bridge deck, as two of his fellows had just done, is contrary to every reasonable inference. To say that he did not know that in walking through the dark passage of the main deck he might encounter obstacles, and might find open hatches, is equally so. Decks have hatches, pipes run across them, hatch covers are repeatedly left off, as the multitude of cases in the books alone prove. He knew and he chose; the defendant was not at fault for that choice.

The case does not involve the ship, which left off the cover. The defendant had nothing to do with that, and could not be at fault for it. There is no suggestion that it had notice of it, and the limit of its duty was to advise the intestate that there might be open hatches or other dangers by the route which he took. But that is only the same question in another form. Such advice would have seemed absurd to him. He knew the facts as well as any one could. It makes no difference that this was not a cargo hatch, which it is not negligent to leave open, if the ship is awaiting her cargo (The Saratoga, 94 F. 221, 36 C. C. A. 208 C. C. A. 2), but a coal hatch which it is (The Helios D. C. 12 F. 732; The Guillermo D. C. 26 F. 921; The Protos C. C. 48 F. 919). The defendant is not chargeable with the ship's fault. And so we think that the evidence showed no fault in the defendant, and this was enough to justify the dismissal.

The same question again comes up on the issue of contributory negligence. If it is hard to see how a master may be charged with fault for failing to warn a servant, equally familiar with itself of the conditions he may meet, it is equally hard to see how the servant can be free from fault, if he invites the danger. In The Saratoga, supra, we held that a stevedore was negligent who failed to use lights which were provided and fell into the hatch. We made the same ruling in The Santiago, 137 F. 323, 69 C. C. A. 653, in respect of a laborer working in a dark hold. The Circuit Court of Appeals for the Eighth Circuit held a workman at fault for going to his locker near an engine pit in the dark. North. Pac. Ry. v. Post, 170 F. 943, 96 C. C. A. 153. So also in The Gladiolus (D. C.) 21 F. 417, affirmed (C. C.) 22 F. 454; The Jersey City (D. C.) 46 F. 134; The Nikolai II (D. C.) 102 F. 174. While the Circuit Court of Appeals for the Fourth Circuit by a divided court exonerated a carpenter under somewhat similar circumstances, in Burrell v. Fleming, 109 F. 489, 47 C. C. A. 598, it does not appear how familiar the plaintiff was with ships.

The same rule does not apparently apply in the case of landsmen. The Guillermo, supra; Ward v. Dampskibselskabet, etc. (D. C.) 136 F. 502. In The Helios, supra, although it was a stevedore who was injured, the mate had told him that the vessel was ready, and...