Kennedy v. Netherlands Am. Steam Navigation Co.

• Decision Date: 16 March 1909
• Citation: 72 A. 382,76 N.J.L. 618
• Parties: KENNEDY v. NETHERLANDS AMERICAN STEAM NAVIGATION CO.
• Court: New Jersey Supreme Court

72 A. 382

76 N.J.L. 618

KENNEDY

v. NETHERLANDS AMERICAN STEAM NAVIGATION CO.

Court of Errors and Appeals of New Jersey.

March 16, 1909.

Error to Supreme Court.

Action by Sarah Kennedy, administratrix, against the Netherlands American Steam Navigation Company. From a judgment for plaintiff, defendant brings error. Reversed.

Gilbert Collins and George S. Hobart, for plaintiff in error. Warren Dixon, for defendant in error.

GUMMERE, C. J. This action was brought to recover damages for the death of plaintiff's intestate, John Kennedy, which occurred while he was in the employ of the defendant company as a coal shoveler. The work in which he was engaged was trimming coal on the defendant's steamer Staatendam, on what is known as the "between decks," while the steamer was at the Hoboken docks. In order to get to this part of the vessel, it was necessary to climb down a ladder from the main, or upper, deck, to the next deck below, known as the "spar deck," and thence down another ladder to the "between decks," where the coal bunkers were located. Below the "between decks" was the hold. There were two hatchways opening into the hold from the "between decks." These hatchways were opposite one another, with a space of about two feet between them. The ladder leading from the "between decks" to the spar deck was located about three or four feet from the forward starboard corner of the starboard hatchway. Directly over the hatchways in the between decks was a large hatchway in the spar deck, and directly above this lastmentioned hatchway was another hatchway of the same size on the main, or upper, deck. In front of the coal bunkers, where Kennedy, together with other employes, was working, was a movable bulkhead separating them from the rest of the between decks. This bulkhead was about 20 feet distant from the hatchways on the between decks. There was an opening in it some two or three feet square, through which the coal trimmers passed into the bunkers. The between decks received what light it had through the hatchways which were in the main and spar decks, and which were left uncovered while the vessel was being loaded or unloaded; the sun being depended upon to furnish the light through the day, and a cluster of electric lamps, which was suspended over the middle of the hatchway upon the main deck, furnishing the light at night. The bulkhead which separated the coal bunkers from the rest of the between decks shut off from the bunkers the light which came through those hatchways, and the coal trimmers were supplied with light by lamps which were furnished to them by the defendant company, and which were extinguished and left in the bunkers when they stopped work. On Saturday, the 17th of October, 1903, Kennedy and his co-laborers began work in the bunkers at 7 o'clock in the morning. They worked until 12 o'clock, and then went out for lunch, returning at 1. At 6 o'clock they quit work for the day, and the men, with the exception of Kennedy, left the bunkers one after another, passing through the opening to the between decks, and from thence up the ladders to the main deck. At that time the electric lights were burning, but the upper hatchway had been partially closed by some one to keep out rain which had fallen during the afternoon, thereby partly intercepting the light which would otherwise have been thrown upon the between decks. Apparently to make up for this deficiency in the light, a candle had been placed upon the floor of the between decks. After the men had come up, one Peterson, an employe of the company, who was on the main deck, called down through the hatchways to see if any of the coal shovelers remained below, and, receiving no answer, went down to the between decks and extinguished the candle, and then returned to the main deck, and put the covers over the Wain hatchway. On Monday morning following the dead body of Kennedy was discovered in the hold. No one saw the accident which produced his death; in fact, he was not seen by any one after he stopped work in the coal bunkers on Saturday night. He had worked in these bunkers on at least a half dozen other occasions when the vessel was in port. On the facts recited the trial court left it to the jury to say whether Kennedy's death occurred while coming away from the coal bunkers with his companions, and, if so, whether it was due to his accidentally falling into the hold through inability to see his way for want of sufficient light on the "between decks," and charged them that in case they so found they should determine whether in not providing more light at that place and time the defendant had failed in the duty to use reasonable care to see that the way furnished to Kennedy when leaving his work on the occasion of his death was reasonably safe, and, further, that, if they found such failure of duty on the part of the defendant, their...