I concur. I think that reversal may rest, also, upon an error in the instructions.
The intestate was killed when in the hold of a ship which was loading by his master, a stevedore. A boom had been attached to a cargo mast, and at the top of this boom there was a block and rope which ran down the side of the boom to a winch. At the end. of the rope was a hook. The boom went around to cargo on a lighter, a load was lifted from the lighter to the deck of the ship and then lifted therefrom into the hold. When the load had been thus stored away a sling was put on the hook and one servant would swing the hook to another servant *364called the “gangwayman.” On the occasion of the accident this hook caught a beam of the between deck hatch and lifted it from its sockets so that it fell into the hold and upon' the intestate.
The contention of the plaintiff is that the defendant was negligent in failing to provide a safe place to work, safe and proper ways, works and machinery, in lack of superintendence and of inspection, in that it permitted the-beam to remain in its sockets without being securely or properly fastened. The plaintiff’s cáse developed as the feature of negligence that the beam was not bolted into its place, although its construction provided such-security.
It is my personal opinion that the learned court erred capitally in its disposition of this request for instruction of the jury: “ The defendant and its agents were not bound to anticipate that the cross hatch beam would be lifted out of its position.’’ The learned counsel for the plaintiff objected to the request on the ground that it was “a question of fact.” The court refused it under exception and without comment. This absolute refusal by the court suffered the jury to infer logically from the last words of the court on this specific subject that the defendant and its agents were bound to foresee that the cross hatch beam would be lifted out of its position.
The beam was the thwartship beam, made of iron, weighed 900 pounds and rested in sockets. It may be assumed that when the vessel rode at anchor at dockside this beam could not readily be disturbed by chance from its place. This work was doing under similar conditions for four days, one-half of the time on one side of this beam and one-half on the other, for the beam exactly divided the hatch. The half hatch in use was 12 feet by 18 feet. One-half of the hatch on the top deck was covered over at the time. This indicates that the beam was on the extreme side of the half of the hatch that was in use. Plaintiff’s witness Rourke, the gangwayman, testifies with reference to the fellow-servant whose duty it was to “throw” or to swing the hook to him, he “threw this hook toward me, and in place of throwing it towards me, he threw it in a slanting direction. * * * The beam would lay right between both of us but to one side, and there would be a space of *365twelve feet, running from the heam to the aft end of the hatch, and eighteen feet across, and the fellow apparently intended to throw the hook across the eighteen feet * * * or a portion of it, towards me, when in fact he threw it to the side; * * * and it caught under the upper flange, the upper flange of this beam, and the beam came out.” There is no proof of any similar accident, or even of a similar engagement, and there is no suggestion that the method of work was unsafe. The obligation of law put upon the defendant was too great. In any event, assuming but not deciding that the proof was sufficient to indicate both that the beam was not bolted and that the defendant was chargeable with that condition, the question was whether the defendant in the exercise of due care should have foreseen that the beam under that condition might be disturbed from its place by this work so as to endanger life or limb.
Judgment and order reversed and new trial granted, costs to abide the event.