Bishop v. Atlantic Stevedoring Co. , 199 A.D. 941 ( 1921 )

Per Curiam:

We think the evidence presented a question of fact whether defendant was guilty of negligence in failing to cover or protect the unused open hatch, especially in view of the request for that safeguard made by one of the fellow-workers of the decedent. A question of fact was also presented as to the negligence of the foreman in directing decedent to dislodge or remove the heavy truck from the obstructing stanchion without shutting off the steam. The evidence justified the verdict of the jury that the defendant was negligent in one or both of these particulars. The defendant asked the trial judge to charge in effect that decedent assumed the risk presented by the open hatch and the failure to shut off steam; the trial justice left the question to the jury. The exception to this refusal was the only exception to the charge. On the whole case we think the question of assumption of risk was for the jury. (Fitzwater v. Warren, 206 N. Y. 355, 358; Dowd v. N. Y., 0. & W. R. Co., 170 id. 459; Davidson v. Cornell, 132 id. 228; Johnston v. Fargo, 184 id. 379; Felcin v. Society of New York Hospital, 155 App. Div. 545.) The judgment and order should be affirmed, with costs. Present — Blackmar, P. J., Mills, Rich, Putnam and Kelly, JJ. Judgment and order unanimously affirmed, with costs.