I regret that I am unable to concur with the majority opinion in this case in holding that there was a legal liability upon the part of the defendant company for the injuries sustained by plaintiff. On the trial the answer was amended so as to allege plaintiff's assumption of the risk and also contributory negligence upon his part. As I read plaintiff's own testimony, I think, as a matter of law, he both assumed the risk and was also guilty of contributory negligence. If the first assumption is correct, then there was no legal liability upon the part of the defendant company. If I am in error in that respect, then there is no allowance made for plaintiff's contributory negligence but the entire damage was assessed against the defendant company.
According to plaintiff's own testimony, he was an able-bodied seaman, forty-three years of age and had *Page 497 been engaged as a seaman since he was sixteen years of age and was thoroughly familiar with all the duties, risks and dangers of a seaman. He had been at one time a boatswain on another ship. He testified that the accident occurred about 2:30 o'clock in the afternoon; that just before its occurrence, he had been down below,
"and the mate called `All hands', and I had come on deck, and the mate told me to see that the gear is up, and to clear the hatches of the lines and slings. * * * Q. What time were you called to duty that time? A. I was called on duty at half past two. The mate come forward and the bos'n come forward with one man, and he said, `Turn to and batten down the hatches, and get the gear cleared'; * * * I went aft, dressed myself and I went up on deck. He said we must get on deck, — the mate said, `Now, you go on up to number 2,' and I seen that he got through with number 1, `And have the booms ready to lower down, and see that all them slings and gear is off them hatches.' * * * Before I came to number 2, the mate said to me, `You go up on number 2', — he was on number 3 hatch, and he says, `you go up on number 2 hatch and lower that gear down and see that the slings is off the hatches, and that we have everything ready to put out; we want to put out.' Q. When you came up to this number 2 hold, just tell the jury what the condition those hatch coverings were in. What was on them? A. When I come on to number 2 hold, the hatches was all covered, everyone of them, and there was all kinds of ropes and slings on it; and when I cleared the hatch, and when I looked all over the hatches, I couldn't see anything wrong with them. If I see there was anything wrong with them, I certainly would not have stepped back on it. I have been to sea too long, so I know a lot about hatches, if it was right or wrong."
He testified that the hatch covers were about 2 1/2 feet wide, 6 or 8 feet long and 3 inches thick; that *Page 498 one of these hatch covers was only partially in place and when he stepped on the end of it, it tipped and precipitated him to the deck below, a distance of eight or ten feet, causing the injuries complained of. He was then asked:
"Q. Who was it that put these hatches around over these two holds, do you know?
"A. The stevedores put the hatches over the holds; they put them over the holds, but the third mate is supposed to be in charge of that, to do that, and see it is done."
At the time of the injury the ship was tied to the dock in the harbor of Tingsau, Manchuria. He then testified:
"The hatch wasn't in the proper place at all — The hatch was put on right and everything; that hatch was put on right. There is nothing wrong with it that I couldn't see. If I saw it was not in the proper place, I certainly would not step on it. The hatches was put on right, and I couldn't see nothing on top. All I could see was ropes and tackles on there, and I stepped on this hatch first, and I was helping with some tackles, and then I wanted to get — I stepped on this side, and I fell right down. This hatch was on the starboard side, and I walked before from this hatch here (indicating) to this one, and I walked up that way again to get some slings, and I went over to that hatch there (indicating), and I started to walk this way and there was some slings I had to get, and I went right down. I couldn't see nothing wrong with the hatches. I looked at the hatches before I went on the hatch, every time I step on a board. If I see a hatch wasn't on right, I certainly would not step on it. When I go on board ship, if I work there, I look at the hatch first, if they are put on right. I couldn't see nothing wrong with it, on account there was lots of ropes and tackles laying on there. I stepped on this hatch and I was going to get the rest, and I couldn't see nothing wrong with *Page 499 the hatches; if I see anything wrong, I certainly would not step on there; nobody wants to fall down if they can help it."
Under this testimony, an able-bodied seaman, thoroughly acquainted with the dangers incident to the work, had been directed to close the hatches and batten them down. While performing this order, if the hatch coverings were not all in place, it was his duty, after clearing them of the ropes and slings on them, to place the covers in place and then to place over the hatches the tarpaulins to make them water-tight. While doing this work, he was making a dangerous place safe and the danger incident to the work was as open and visible to him as it would have been to the master of the vessel or any of its officers if they had been there at the time. In the loading and unloading of cargoes, it is, of course, necessary to remove the hatch coverings so that the cargo can be raised or lowered into the hold and if the stevedores, who do the work, leave the hatches open, or the covers not all in place, then a seaman is directed to close the hatches and batten them down. He is engaged in making a dangerous place safe and the rule applicable to the facts testified to by plaintiff is that stated in Bailey on Personal Injuries (2d Ed.) § 69, as follows:
"It is the duty of the master, which he cannot delegate so as to escape liability, to use reasonable or ordinary care to provide a reasonably safe place for his servants to work in, except that such rule does not apply (a) where the work the servant is employed to do consists in making a dangerous place safe, or (b) where the character of the place for safety is constantly changing as the work progresses as a direct result of the servant's labor, or (c) where the work itself makes the place insecure or dangerous, or (d) where the place is made unsafe by the carelessness and *Page 500 negligence of fellow-servants (this last exception is, of course, eliminated in cases of this character by the federal statute), or (e) where the place is made unsafe by a stranger and sufficient time has not elapsed to charge the master with knowledge thereof."
The court instructed the jury, in effect, that it was the duty of the defendant company to provide a reasonably safe place for plaintiff to work when he was doing the work of closing the hatches and battening them down. The court also denied a motion for a directed verdict. In my judgment the court erred. Therefore, I think the case should be reversed.
I concur, however, in the holding that if there was legal liability then the evidence did not support a verdict for the amount rendered and that, therefore, it is proper for the court to reduce the amount of the judgment to an amount commensurate with the injury sustained as shown by the testimony. *Page 501