Lehigh Valley Transportation Co. v. Cook ( 1908 )

Mr. Justice Smith

delivered the opinion of the court.

In addition to proof of actionable negligence on the part of appellant, it was necessary, in order to make a case, that the appellee prove that at the time of the accident he was in the exercise of due care for his own safety—in other words, that his own negligence did not contribute to the injury. Cullen v. Higgins, 216 Ill. 78, 82.

Appellee was not in the employ of appellant. He was in the employ of Connors, and went on board the ship in obedience to the order of his foreman, Lawless, if any such order was given to look for a truck. The evidence as to where the trucks belonging to the ship were kept in the ship, is contradictory. Some of the testimony is to the effect that they were kept in the fan-tail, upwards of 400 feet from the place where appellee was injured, and some of the witnesses say they were kept in the forward part of the ship. It appears from the evidence that appellee had assisted in unloading this vessel on other occasions. If he did not know where the trucks were kept, it would have been only reasonable and prudent to have inquired of some of the boat’s crew. Without stopping to make any inquiry, or waiting for the gang-plank which his foreman with a part of his gang had gone down the dock to procure for the purpose of reducing the grade from the deck of the vessel to the dock, in preparation for the work of unloading the cargo, and without waiting for the hatchway on the spar deck to be opened, which was done within a few minutes after he fell, he went on the main deck and walked about fifteen yards from the gangway, where it was dark, and stepped into the open hatchway Ho. 2. Appellee testified that hs knew there was a hatchway there, but he says the hatchways were generally closed, and on other occasions when he worked on this vessel this hatchway was closed.

At this time the ship was not fully prepared for unloading the cargo. The gangway and gang-plank was not ready for that purpose. The spar deck hatchways, known as three, four, five, six, seven, eight, nine and ten, had been opened, but hatchways one and two on the spar deck, which were over or nearly over hatchway two and would, when open, admit light to it, had not been opened. The freight checker who directs what j freight is to be taken off was not there, and no orders 1 had been given as to the handling of the freight. J

In the opinion of a majority of the court, the evidence shows that appellee’s own negligence contributed to his injury, and therefore he is not entitled to recover. It was not consonant with due care for his own safety for appellee, knowing that the hatchway was ’ there, to walk over the deck without knowing whether the hatchway was open or closed. He had no right to assume that it was closed at that particular time, when, as he knew, the cargo of the vessel was to be discharged, and the hatchway might be open for that very purpose. As said in C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248-254: "One who, failing to observe / due care, blindly walks into a danger that the observ-f anee of due care would have enabled him to avoid, is* no less guilty of contributory negligence, than he, being able, by the observance of due care, to extricate himself from danger, fails to make any effort for his personal safety, and because thereof is injured.”

Appellant at the time of the accident had done nothing, in the opinion of a majority of the court, which cast upon it the duty toward appellee to keep the hatchway in question closed or guarded at the time appellee fell into it. The opening of the gangway was not an invitation to appellee to enter the ship, under the circumstances shown in evidence. As stated above, appellee was in the employ of an independent contractor. Appellant had no notice of his intention to go near the. hatchway, for there was nothing for him to do there, and at that point of time it could not be expected to guard against the action of appellee in walking around in the darkness where he was not invited or expected, in advance of the time when he, as a member of Connors’ gang, might reasonably be expected to be on board the vessel for the purpose of unloading the cargo. He was not obliged to walk there for the purpose of removing and unloading freight, and he was not there for that purpose.

In Dwyer v. National Steamship Co., 4 Fed. Rep. 493, the court, in discussing the alleged duty of the owner of the steamer of maintaining the hatchway in a safe condition and the failure to discharge that duty, at page 495 said: “Hatchways are well-known features and sources of dangers on a ship. They are intended to be open a large portion of the time, especially when in port, not only for the purpose of loading and unloading cargo, but also for ventilation. An open hatchway on a ship, when provided with the usual coamings, is not evidence of a neglect of duty on the part of the ship-owner. On the contrary, a ship-owner has the right to allow the hatchways of his ship remain uncovered and unprotected, except by the usual coamings; and all persons moving upon the decks of a ship are chargeable with notice of the probable presence of open hatchways on the deck. Neither is it the duty of the ship-owner to maintain a guard stationed at the hatchway of his ship for the purpose of protecting persons from injury by falling into it. Such a duty would be burdensome in the extreme, and is not "required by the law. Murray v. McLean, 57 Ill. 378. The requirement would be unreasonable, has never been observed in practice, nor, so far as I know, declared in any adjudicated case.”

To the same effect is The Helios case, 12 Fed. Rep. 732, the court saying at page 733: “It was not a hatch for the usual stowage of cargo, such as stevedores must at their peril look out for and aré presumed to know about, and had no reference to the cargo, and the stevedores had no business with it, as the evidence shows.” For the foregoing reasons a majority of the court think that appellant is not liable. The judgment is reversed with a findings of facts.

Reversed.