Pepperman v. Overseas Shipping Co. , 1926 N.Y. App. Div. LEXIS 9260 ( 1926 )

Per Curiam.

We are of the opinion that no negligence was proven against the United States Steel Products Company. If the accident happened because of the negligence of the Overseas Shipping Company, Inc., there can be no liability on the part of the United States Steel Products Company for maintenance and care, because that would be compelling it to pay for the. wrong of another. In our opinion, the alleged improper piling of the hatch covers furnishes no ground of negligence against either defendant. We are, however, of the opinion that enough was shown to raise an issue as to the negligence of the Overseas Shipping Company, Inc., in the operation of the work. It was the duty of the stevedores employed in the prosecution of the work to be watchful of the safety of those on the ship in the performance of their duty, and the evidence is sufficient to show that the winchmen knew or should have known that the plaintiff was standing near the hatchway into which the drafts were being lowered. It was, therefore, a question for the jury whether, under such circumstances, a warning should not have been given to the plaintiff before the draft was swung over or the draft withheld until the plaintiff was out of the Way. The action of the court in adding the amount found against the United States Steel Products Company for maintenance and care to the amount of damage found against the Overseas Shipping Company, Inc., cannot be upheld. In the first place, the court improperly directed a verdict for the total amount. There was no reconsideration on the part of the jury. If there had been, the jury might have said that the damages chargeable to the accident Were not the same amount which it fixed as the value of maintenance and care. In addition to this, it would seem that the admiralty obligation for maintenance and care is not the same as the obligation of the defendant Overseas Shipping Company, Inc., as the result of its negligence. The jury informed the court that their verdict for $5,000 against the Overseas Shipping Company, Inc., did not include anything for loss of wages and medical expenses. This, of course, plaintiff is entitled to as part of his damage if he was hurt because of the negligence of the Overseas Shipping Company, Inc. We think the judgment and order should be reversed on the law and the facts and a new trial granted, with costs to abide the event, unless plaintiff stipulate within twenty days that the verdict be reduced to $5,000 and the judgment modified accordingly. If such stipulation be given, the judgment as so modified, and the order, are affirmed, without costs.

Present — Kelly, P. J., Rich, Manning, Young and Lazansky, JJ.

Judgment and order reversed on the law and the facts, and a new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate that the verdict be reduced to the sum of $5,000, and the judgment modified accordingly; in which event the judgment, as so modified, and the order are unanimously affirmed, without costs.