McCabe v. Turner & Blanchard, Inc.

Kelly, J.

(dissenting):

I am forced to dissent. While I am disposed to agree with Mr. Justice Mills’criticism on the general natúre of the charge in omitting to direct the attention of the jury to the particular defect claimed and whether its existence would be ascertained by reasonable inspection, still the defendant did not ask for specific instructions. I do not agree that as matter of law there was no duty on the master to examine the support for the planks. I think that in regard to the sufficiency and safety of the hatch cover of loose boards which was the floor upon which the men were put to work, a much greater degree of care was necessary than in the case of the ringbolt ” in Liverani v. Clark & Son (191 App. Div. 337; revd., 231 N. Y. 178), and, applying the law as laid down by the Court of Appeals in that case, to the facts here, the short plank was a readily visible indication of a defect.

I think a jury might say, in view of the importance of a secure floor, the planks in the hatch being laid loose, that reasonable care might require the foreman in charge to test the stability of the flooring. He made no such test, indeed it does not appear that he did anything, While it is true the men used this hatch cover as a floor previous to the accident without mishap, I think it would still be for the jury to say whether reasonable inspection would not have disclosed this defect in the support which with the short plank brought about the injury to the plaintiff. In a hatch cover such as this, the fact that one of the planks was one and one-half to two inches short was a serious defect if the planks were held up by a narrow flange beneath.

Judgment and order reversed and a new trial granted, with costs to abide the event.