On April 22, 1921, the plaintiff was a member of a gang of ten longshoremen, six of whom were known as the hold gang. The work of these six was to arrange the hatch covers, to move the. cargo in the hold and to attach it to the fall. The other four men were known as the deck gang and their duties were to arrange the rigging, to operate the winches and to give signals. All ten were under the direction of a foreman named Hundley.
A chief stevedore named Bradley had entire charge of unloading the ship. He was back and forth between the dock and the ship as the work progressed. A head stevedore named Toney and an assistant named Albright were also over Hundley. They were in *591and around the ship while work was proceeding, going from one hatch to another.
On the day of the accident a vessel was being unloaded at a dock and plaintiff was working at hatch No. 5, near the stern of the vessel. This hatch was about twenty-seven feet long and sixteen feet wide and was covered with three sets of hatch covers about eight or nine feet in length and two feet in width. Across it were placed two crossbacks made of iron, dividing it into three equal sections. Across the middle of each of these three subdivisions of the hatch and parallel with the crossbacks were placed other iron beams of a lighter construction, known as blinders. The hatch covers, which ran fore and aft, rested upon these beams ■so •.tfiqt the ends of the covers were supported by the crossbacks. The .blinders were underneath the middle of each set of covers.
In preparing the hatch for unloading on the day of the accident, the tarpaulin cover was rolled back toward the bow so as to uncover two aft sets of hatch covers. Then these two sets of hatch covers were removed and also one of the crossbacks and the two blinders. This left covering this hatch the forward set of hatch covers, supported by a crossback at .one end and by the hatch coaming at the other, with a blinder beam underneath the center of the covers. This work was done by the gang of which plaintiff was a member, preparatory to unloading the cargo.
The unloading of the cargo consisted of removing crates of fruit, iyhieh work had been carried on by the use of an up-and-down fall and a Burton fall. The two booms were fixed in position, one over the hatch and the other over the dock. During the morning, the method of work had been to raise the draft out of the hold with the up-and-down fall and then to attach the Burton fall, swinging the load over to the dock. This required two signalmen. The plaintiff stood by the hatch and gave signals to the up-andiJown winchman. A fellow-employee named Watts stood by the rail of the ship and gave signals to the Burton winchman. Later in the day the foreman directed that the two falls be shackled together, thus making it unnecessary to have two signalmen, whereupon the plaintiff was sent to the dock to there assist in .removing the crates.
It appeared from his testimony that the up-and-down boom was in a fixed position; and it was customary to have the draft come to rest at a point directly below the center of the hatch before the signal was given to raise it. The load should, therefore, if tjaework were properly done, come up through the open hatch inThe same position each time. About three o’clock in the afternooh-. a bundle of crates was so handled as to swing and catch under the crossback *592supporting the forward set of hatch covers, which had been left in position. In this manner the crossback was pulled out, so that it fell into the hold. The hatch cover, however, remained in position by reason of being supported at one end by the hatch coaming and in the middle by the blinder beam.
When this occurred the plaintiff was down on the dock. Immediately upon the crossback being pulled out, the foreman, Hundley, was summoned, and set the men to work preparing to remove the hatch cover. The tarpaulin had first to be removed.
The plaintiff asserts that the foreman, Hundley, came to the rail of the ship, which was about twenty feet above the dock, and said to the plaintiff: “ Allen, come up here and get up on the hatches and give Mr. Watts a hand to pull the tarpaulin off.” Thereupon the plaintiff, after putting away his hand truck, walked back about fifty feet and came up over the rail of the ship to the deck, at a point about twenty feet from the hatch. He passed one of the winchmen and went to where Watts was standing on the hatch with one foot on the coaming and the other on the covers, engaged in pulling the tarpaulin. Watts had his back toward the plaintiff. The plaintiff also observed the foreman, Hundley, on the opposite side of the hatch standing on the deck, also with his back toward him, bending over and working at something.
The plaintiff without waiting for any instruction and without even making his presence known, stepped up on the hatch cover for the purpose, as he stated, of assisting Watts in rolling back the tarpaulin. As he stepped on the cover it tipped and he fell and was injured. The plaintiff seeks to hold the defendant liable for the injuries thus received.
In Kreigh v. Westinghouse, Church, Kerr & Co. (214 U. S. 249, 255) the United States Supreme Court said: “ The duty of the master to use reasonable diligence in providing a safe place for the men in his employ to work in and to carry on the business of the master for which they are engaged has been so frequently applied in this Court, and is now so thoroughly settled, as to require but little reference to the cases in which the doctrine has been declared. * * *
“ But while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employés to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends *593on the due performance of the work by the servant and his fellow-workmen. (Armour v. Hahn, 111 U. S. 313; Perry v. Rogers, 157 N. Y. 251.) * * *
“ If the negligence of the master in failing to provide and maintain a safe place to work contributed to the injury received by the plaintiff the master would be liable, notwithstanding the concurring negligence of those performing the work.”
The cases of Grand Trunk R. Co. v. Cummings (106 U. S. 700) and Deserant v. Cerillos Coal Railroad Co. (178 id. 409) are cited as authority for this latter proposition.
In the case of Perry v. Rogers (157 N. Y. 251, 253) Parker, Ch. J., writing for the Court of Appeals said: “ We think this judgment must be reversed, because it does not appear that the injury sustained by the plaintiff was due in any degree whatever to the omission of the defendant to perform any duty which, as master, he owed to his servant, this plaintiff. The learned trial judge submitted the case to the jury upon the theory that there was some evidence tending to show that the defendant omitted to perform the duty the law charges upon all masters of furnishing a reasonably safe place in which the servant may work.”
It appears to be the law that if a safe place was furnished and, during the performance of the work, it has become momentarily unsafe, through acts of fellow-servants or employees through no fault of the master, he is not liable for a resulting accident.
We believe this to be such a case and that the master is not liable for the negligence of the employees in permitting the place to become unsafe during the performance of the work.
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., and Burr, J., concur; Merrell, J., concurs in .result; Finch, J., dissents.