Brick v. Long Island R.R. Co.

Cardozo, Ch. J.

The action is for negligence resulting in death.

Thomas Brick was employed by the defendant as an engineer on its tugboat, the Patchogue. He entered the pilot house about midnight on April 22, 1923, and asked the captain for some waste to be used in the engine room. He was told that none was there, and went out to seek it elsewhere. A few moments later, the boat rounded a light, listing a little in the turn. Sailors on the starboard side of the lower deck heard something fall from the port side of the deck above, and one of them saw something which he likened to a falling shadow. Almost at the same time a voice was heard in the water calling the captain’s name. The boat was stopped, but the fallen man could not be seen. His dead body was found the next day.

The Patchogue is a tug 90 feet, 5 inches long. Her upper deck, which is also the roof of the tug house, is protected by a railing for a space of thirty-five feet aft. Between the ventilators, and a little in front of them, is a box which was used as a receptacle for waste, oil and lamps. This box is about three feet aft of the railing. It is more than ten feet away from the edge of the deck. The plaintiff’s theory of the accident is that Brick went to the box and fell from the deck as the tug rounded the buoy. On that assumption, fault, it is said, may be ascribed to the defendant both in navigation and in equipment.

(1) We see no evidence of negligence in the navigation of the boat. The plaintiff argues that the captain had reason to believe that Brick was going aft for waste, and should have called out a warning before making a sudden turn. This would indeed have been a most extraordinary precaution. Brick was an experienced seaman. A captain, busy in steering \s course through the shallows of a bay, cannot reasonably be expected to take notice of the location of every member of his crew. There was nothing unusual in the movement of the vessel in respect of time or manner. There was nothing in the known situation to suggest to ordinary prudence the necessity of warning.

(2) We see no evidence that the boat was unseaworthy in structure or equipment. Many tugs have railings around the entire upper deck. Many like the Patchogue have railings around the forward part only. , A more or less haphazard count by plaintiff’s witnesses disclosed a greater number with complete railings than with partial ones, perhaps seventy-five or eighty per cent. Both forms of construction, however, are so common that they must be recognized as standard. We may not say upon the slender evidence within the covers of this record that a fifth of the tugs in the harbor are unseaworthy in build.

“ Ships roll, and those who go to sea must have sea legs ” (Adams v. Bortz, 279 Fed. Rep. 521). Precautions suitable in aid of passengers may be unexpected and superfluous for members of the crew. What is necessary or usual in the equipment of an ocean liner may be unusual and needless in the equipment of a harbor tug. “ Seaworthiness is a relative term ” (Hanrahan v. Pacific Transport Co., 262 Fed. Rep. 951). There is no evidence how often or for what purpose the crew had occasion to go upon the part of the tug house roof unprotected by a guard. The only purpose suggested is the use of the box of .waste. Indeed, counsel in effect concedes that except for this box the absence of a guard would have little or no relation to the safety of the structure. ■ The box, however, was so located that a man might stand beside it and be all the time within easy reach of the railing to the front. Again we must remind ourselves that seaworthiness is something relative. Equipment should be suitable when viewed in the light of reasonable probabilities, such as the extent of the use to which an unprotected section is to be put, the waters to be traversed, and generally the dangers to be feared. A boat is not unseaworthy because there are spaces here and there where a seaman, if awkward or inattentive, may find it possible to fall (The Santa Clara, 206 Fed. Rep. 179). The mariner on the dizzy mast has this at least in common with his sheltered brother in the harbor, that the work of each is on the waves. One who would shun their perils wholly, should stay upon the land.

The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed with costs in the Appellate Division and in this court.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Ordered accordingly.