Robert v. United States Shipping Bd. Emergency Fleet Corp.

• Citation: 148 N.E. 650,240 N.Y. 474
• Parties: ROBERT v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.
• Decision Date: 15 July 1925
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 474

148 N.E. 650

ROBERT

v.UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.

Court of Appeals of New York.

July 15, 1925.

Action by Charles Robert against the United States Shipping Board Emergency Fleet Corporation and the Roosevelt Steamship Company, and the Moore & McCormack Company, Inc. From a judgment of the Appellate Division (211 App. Div. 868, 207 N. Y. S. 908), affirming by a divided court a judgment of the Trial Term, entered on a jury verdict for plaintiff against defendants last named, and dismissing complaint as to defendant first named, the defendants last named appeal.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Second department.

Joseph M. Dreyer and Nathan A. Smyth, of New York City, for appellants.

Arthur Lavenburg, of New York City, for respondent.

CARDOZO, J.

Plaintiff, an able seaman on the steamship President Roosevelt, was ordered by an officer to paint the draft numbers on the stem while the steamship was lying in the harbor of Bremerhaven. There is evidence that the stem of the vessel was between two barges overlapping it on either side. Plaintiff stood upon a camel raft or fender, which was intended to keep the vessel from contact with the wharf. The raft was made of logs, with holes between them through which slime and water rose, making it hard to keep a foothold. The difficulty was corrected to some extent by placing planks across the logs, but only two planks could be found. Plaintiff, painting with his right hand, held onto the stem with his left in order to keep steady. There is evidence that he asked his officer for a boatswain's chair, but none was given. The water was in constant agitation through the movement of vessels which were coming into the basin and leaving it. As a result of this movement, one of the overlapping barges was driven against the stem, and struck the plaintiff's hand. He suffered injuries for which he sues.

[1] We think the evidence of negligence, though slight, is not lacking altogether. The defendants' officer admits that the plaintiff's position was one of danger if the steamship was moored with its stem between the barges. He would not order a man, he says, to work in such conditions. He denies, it is true, that there was overlapping except on one side, but in this he is contradicted by the plaintiff and by others. We have evidence, therefore, that the plaintiff was ordered to work in surroundings which were known by his superior to involve the risk of a collision. When we add to this the evidence descriptive of the condition of the raft, we think a basis has been laid for an inference of negligence. A raft, even though unsteady, may be safe enough in some surroundings. Here the overlapping barges charged an employer with a duty to supply protection against sudden and untoward contacts, or so the triers of the facts might

‘It was not necessary that the defendantshould have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ Munsey v. Webb, 231 U. S. 150, 156, 34 S. Ct. 44, 45 (58 L. Ed. 162), quoted in Condran v. Park & Tilford, 213 N. Y. 341, 107 N. E. 565, and Meisle v. New York Cent. & H. R. R. Co., 219 N. Y. 317, 320,114 N. E. 347, Ann. Cas. 1918E, 1081.

[2][3] The question remains whether the duty of protection was due from the defendants or from others. The plaintiff sued the United States Shipping Board Emergency Fleet Corporation as the owner or charterer of the vessel, and Roosevelt Steamship Company and Moore & McCormack Company, Inc., as managing agents. The complaint was dismissed as to the charterer, and a verdict rendered against the managers. The contract between the board and the companies leaves the relation between them uncertain and indefinite. The companies, acting without compensation and as a patriotic service, are to manage the vessels in...