Maloney v. Cunard S.S. Co.

• Decision Date: 22 February 1916
• Parties: MALONEY v. CUNARD S.S. CO., Limited.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 278

111 N.E. 835

MALONEY

v.CUNARD S.S. CO., Limited.

Court of Appeals of New York.

Feb. 22, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Michael Maloney against the Cunard Steamship Company, Limited. From a judgment of the Appellate Division of the Supreme Court (161 App.Div. 913, 145 N.Y.Supp.1132), reversing a judgment for plaintiff and granting judgment absolute dismissing the complaint, plaintiff appeals. Reversed and remanded.

Herbert C. Smyth, New York City, for appellant.

Henry De Forest Baldwin, New York City, for respondent.

CARDOZO, J.

The plaintiff is a longshoreman. In December, 1910, he was engaged in unloading the Cunard steamship Caronia. It was necessary for him to go down into the hold. For this purpose there was provided a “Jacob's ladder.” That is an appliance of frequent use on shipboard. It is a ladder with sides of rope and with wooden steps. The usual means of entrance into the hold was a stationary iron stairway. This had been taken up to make room for a large automobile, and the Jacob's ladder was substituted. The ladder was lashed at the top to a stanchion on the deck; there is evidence, however, that it was not lashed at the bottom, or at any other point. The result was that it swung violently; in the language of the plaintiff, like a clothesline. For several days the plaintiff made the trip in safety. He made it about three times a day. One evening the swaying of the ladder threw him to the ground, and he suffered injuries for which he sues.

[1] We think that evidence supplied by the defendant itself requires us to hold that there was a question for the jury. It was for the jury to say whether the ladder ought, in the exercise of reasonable care, to have been lashed at the bottom. The testimony of the second officer of the Caronia is sufficient of itself to make that conclusion inevitable. He was the officer in charge at the time of the accident. He explains the method of unloading a cargo from the hold. Describing a Jacob's ladder, he says:

“It is always lashed at the top, and then somebody, of course, has to go down, or is already down, in the hold, and lashes it at the bottom and steadies it.”

On the defendant's own showing, to leave the ladder unlashed at the bottom was to depart from the settled practice. We cannot say that this departure is no evidence of negligence. The ladder, if secured at the bottom, would have been steadied. Reasonable men might not unreasonably believe that the omission of so common a precaution was a breach of the master's duty. Lipstein v. Prov. Loan Society, 154 App.Div. 732, 139 N.Y.Supp. 799;Wiley v. Solvay Process Co., 215 N.Y. 584, 109 N.E. 606;Cooney v. Central Dredging Co., 151 App.Div. 345, 135 N.Y.Supp. 472. We think it is not an adequate answer to say that such ladders are in constant use on the outside of ships, and that it is then impossible to lash them. The safeguards to be adopted by the master must be proportioned to the occasion. If it is impossible to steady a ladder that is dropped into the water from the stern or bow, it does not follow that ladders are never to be steadied anywhere. Much depends, moreover, on the place from which the ladder is hung. If hung from the side, it is steadied by the bulging frame. These varying uses are circumstances to be considered by a jury. They do not exculpate the defendant as a matter of law.

[2] If, however, the defendant was negligent, the question remains whether the plaintiff was himself at fault. He knew that the ladder was not lashed, and none the less he used it. At common law it might have been possible to say that he thereby assumed the risk. But changes of the law by statute have withdrawn that defense. At first, the statute modified the defense, without destroying it altogether. The fact that “the employe continued in the service of the employer in the same place and course of employment” after he had discovered or been informed of the danger of personal injury therefrom was no longer to be considered “as a matter of law” an assent to the existence or continuance of such risks, or as contributory negligence. Laws 1902; c. 600, § 3; Laws 1909, c. 36, § 202. On the other hand, “the question whether the employe understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of injury,” was declared to be one of fact, “subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.” But the amendment of the Labor Law in 1910 (Laws 1910, c. 352) has established a new rule. The statute now says that:

“In an action brought to recover damages for personal injury * * * owing to any cause, including open and visible defects, for which the employer would be liable but for the hitherto available defense of assumption of risk by the employe, the fact that the employer continued in the service of the employer in the same place and course of employment after the discovery by such employe, or after he had been informed of the danger of personal injury therefrom shall not be, as matter of fact or as matter of law, an assumption of the risk of injury therefrom.”

There is an exception where the employe knew of the defect and failed to inform the employer, but the exception does not apply when the employer already...