HARDIE
v.
NEW YORK HARBOR DRY DOCK CORPORATION.
No. 79.
Circuit Court of Appeals, Second Circuit.
November 16, 1925.*546 Richard H. McIntyre, of New York City (Wesley M. Messersmith, of New York City, of counsel), for plaintiff in error.
A. G. Maul, of New York City (John McK. Minton, Jr., of New York City, of counsel), for defendant in error.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
We cannot see that the defendant failed to furnish the intestate with a safe way to his work. The route over the bridge deck was certainly such, and it was obviously open to those who did not care to use the dark route over the main deck between door and door. Two of the intestate's fellows had used it before him, and it was a compliance with the master's duty to furnish a safe way. If there be two ways, one safe and the other dangerous, the servant chooses the dangerous way at his peril, if the difference is known to him. Beulah Coal Co. v. Verburgh, 292 F. 34 (C. C. A. 8); Williams Cooperage Co. v. Headrick, 159 F. 680, 86 Cow. C. A. 548 (C. C. A. 8); The Indrani, 101 F. 596, 41 Cow. C. A. 511 (C. C. A. 4).
It seems to us beyond any fair difference of opinion that the intestate knew the safe way and the possible dangers of the other. *547 He was 51 years old, for over 30 years had worked about ships on their engines and boilers, and had worked nowhere else. In the absence of any proof to the contrary, to say that at a glance he did not see that he could have gone over the bridge deck, as two of his fellows had just done, is contrary to every reasonable inference. To say that he did not know that in walking through the dark passage of the main deck he might encounter obstacles, and might find open hatches, is equally so. Decks have hatches, pipes run across them, hatch covers are repeatedly left off, as the multitude of cases in the books alone prove. He knew and he chose; the defendant was not at fault for that choice.
The case does not involve the ship, which left off the cover. The defendant had nothing to do with that, and could not be at fault for it. There is no suggestion that it had notice of it, and the limit of its duty was to advise the intestate that there might be open hatches or other dangers by the route which he took. But that is only the same question in another form. Such advice would have seemed absurd to him. He knew the facts as well as any one could. It makes no difference that this was not a cargo hatch, which it is not negligent to leave open, if the ship is awaiting her cargo (The Saratoga, 94 F. 221, 36 Cow. C. A. 208 [C. C. A. 2]), but a coal hatch which it is (The Helios [D. C.] 12 F. 732; The Guillermo [D. C.] 26 F. 921; The Protos [C. C.] 48 F. 919). The defendant is not chargeable with the ship's fault. And so we think that the evidence showed no fault in the defendant, and this was enough to justify the dismissal.
The same question again comes up on the issue of contributory negligence. If it is hard to see how a master may be charged with fault for failing to warn a servant, equally familiar with itself of the conditions he may meet, it is equally hard to see how the servant can be free from fault, if he invites the danger. In The Saratoga, supra, we held that a stevedore was negligent who failed to use lights which were provided and fell into the hatch. We made the same ruling in The Santiago, 137 F. 323, 69 Cow. C. A. 653, in respect of a laborer working in a dark hold. The Circuit Court of Appeals for the Eighth Circuit held a workman at fault for going to his locker near an engine pit in the dark. North. Pac. Ry. v. Post, 170 F. 943, 96 Cow. C. A. 153. So also in The Gladiolus (D. C.) 21 F. 417, affirmed (C. C.) 22 F. 454; The Jersey City (D. C.) 46 F. 134; The Nikolai II (D. C.) 102 F. 174. While the Circuit Court of Appeals for the Fourth Circuit by a divided court exonerated a carpenter under somewhat similar circumstances, in Burrell v. Fleming, 109 F. 489, 47 Cow. C. A. 598, it does not appear how familiar the plaintiff was with ships.
The same rule does not apparently apply in the case of landsmen. The Guillermo, supra; Ward v. Dampskibselskabet, etc. (D. C.) 136 F. 502. In The Helios, supra, although it was a stevedore who was injured, the mate had told him that the vessel was ready, and this was treated as a warranty.
The rule in New York, though in no sense controlling upon us, goes even further, and apparently makes it contributory negligence per se for any one to go through a dark passage without finding out what may be the obstructions. Rohrbacher v. Gillig, 203 N.Y. 413, 96 N.E. 733. We need not go so far.
Our decision in Drowne v. Great Lakes Trans. Co. (C. C. A.) 5 F.(2d) 58, is not in point. The intestate there fell into the manhole by an involuntary movement. His act of pulling upon a hatch cover 6 or 7 feet away from the manhole was not the proximate cause of his eventual fall.
Finally, it is argued that we do not know how the intestate fell; for all we can tell, he may have used proper care in passing through the passage. While we, of course, agree that the burden is on the defendant, it is entitled to insist upon such inferences as reasonable men must make; it is not bound to exclude every theoretical possibility. And when it has shown how the accident must have happened, it is entitled to ask us to fix the outside limits of the standard of care which was required of the intestate. It is, indeed, conceivable that he became suddenly ill; but short of that we can see no reasonable explanation but that he tripped or stepped over the pipe and fell into the hold. He could not have done either, if he had used a light, or cautiously proved each step with his feet.
Such, so far as we can see, were the limits of rational conclusion to which the jury was confined, and we are bound so to confine them, if verdicts are to be treated rationally at all. Given the facts, it is true that they have a latitude in fixing the standard of care required. We recognize that we must not substitute our own, as we do in causes in the admiralty. But here, too, there are limits, unless the jury is to be all in all. We say that it is beyond any reasonable limit to say that a man, familiar with the possibilities, *548 may trust himself to the darkness of a ship's deck, which he has not tried, and about which he knows nothing and can learn nothing without light. If he does, he must so feel his steps that each shall be safe; else he has plainly risked that it may find no footing.
Judgment affirmed.