I concur with the presiding justice that the plaintiff failed to make out his freedom from contributory negligence; on the contrary, his negligence was apparent. Nor was negligence made out. Even if it had been, however, it was, within the rule laid down in Geoghegan v. The Atlas Steamship Co. (146 N. Y. 369), the negligence of the plaintiff’s fellow-servant. It was there said : “ If the deceased came tó his death by reason of the iron doors being left open on the night of the accident, then it was the negligence of a co-servant which led to the result.
“It was the duty of the master, or the mate, or some officer of the ship, to see that these gangway doors were properly closed and secured at night. The failure to perform this duty is negligence, for which the owner of the ship is not liable. (Benson v. Goodwin, 147 Mass. 238; Rogers v. Ludlow Mfg. Co., 144 id. 198; The City of Alexandria, 17 Fed. Rep. 390.)”
This doctrine, it seems to me, is conclusive upon the question of ■ the defendant’s liability.
*222I prefer to rest my concurrence upon these grounds without pass-’ ing definitely upon the admissibility of the general custom upon such vessels as that of the defendant. A general custom to act negligently would certainly not avail, and it is. hard to say when a failure to do something, which, but for the custom, would be negligent, is relieved of that attribute. It may be, however, that the rule of action upon this particular ship was admissible in.view of the plaintiff’s position. He had been employed thereon for some eight months, and must have known the usage ivith regard to leaving the hatch open over night while cargo was being discharged during the day. The case was tried and submitted to the jury upon, .the theory that the plaintiff had a- right to assume that the hatch was closed. He could hardly have assumed this if .the practice was the reverse, and if his knowledge, of the practice was fairly infer7 able from his long and steady employment upon the ship. So far I am inclined to agree with the views of the presiding justice upon this subject. Beyond that I prefer to reserve my judgment.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. •