(dissenting):
I dissent. The verdict of the jury established the truth of the contention of the plaintiff that the foreman Hundley, came over 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 did just as he was told to do. The plaintiff did not need to wait for further instructions. Those he had were complete. He came over the rail of the ship and stepped up on the hatch cover for the purpose of rolling back the tarpaulin. There had been a change in the hatch cover since the plaintiff *594had stood by the hatch in the morning and given signals, so that the place had become what amounted to a concealed trap, so far as the plaintiff was concerned. Whether when Hundley, the foreman, gave the directions to the plaintiff to step up on the hatch •cover and remove the tarpaulin, Hundley was a fellow-servant with the plaintiff, depends upon whether it can be said that the risk which the plaintiff took was such as was incident to his employment or such as was as open and obvious to the plaintiff as to the (defendant. In Kennedy v. Cunard Steamship Company, Ltd. (197 App. Div. 459; affd., 235 N. Y. 604), where a hatch cover was •closed before the plaintiff had come up from the hold, it was held that the foreman in closing down the hatch cover upon the plaintiff was the alter ego of the defendant and was not a fellow-servant. This court, through Page, J., said:
“ It was a duty that the master owed to the employees, to take reasonable precautions to see that all the men had come up from the hold and not to close down the hatches until all the men had a, reasonable opportunity’to reach the upper deck. This was a duty that the master could discharge through another; but it was the-master’s duty that the other was performing, and for a failure to discharge it the master was hable. (Corcoran v. Holbrook, 59 N. Y. 517; McGovern v. Central Vermont R. R. Co., 123 id. 280, 288; Eastland v. Clarke, 165 id. 420, 429.) The foreman in this case directed the work in the three aft hatches; the men took then-orders from him and applied to him for tackle and other appliances used in their work; it was he who gave the orders to close the hatches. He was not a fellow-servant but was the alter ego of the defendant. The plaintiff made a prima facie case.
“ Whether the plaintiff, placed in the situation that he was by the closing of the hatch, and failing to get any response to his outcries, was chargeable with contributory negligence in going forward in the manner he did was clearly a question of fact for the jury. The plaintiff did not assume the risk. ‘ It is now the settled law of this State that the risks which a servant assumes are either such as are incident to his employment, after the master has discharged his duty of reasonable care to prevent them, or such as are quite as open and obvious to the servant as the master.’ (Eastland v. Clarke, supra, 427.) The plaintiff was not employed to work in the ship in the darkness. The risk of falling into the open hatch in the daytime, when engaged in the work, he assumed. But the risk of falling into the hatch, when all light had been cut off by the master’s negligent act, he did not assume.”
In McGovern v. Central Vermont R. R. Co. (supra) the decedent was directed by the superintendent to enter a grain bin from a trap*595door in the bottom. The court there held that the danger did not; arise out of tlié ordinary prosecution of the work and that, in ordering the decedent to occupy a place of danger, the superintendent was the alter ego of the master. So, in the case at bar, it cannot be said that the risk of being directed to work upon a hatch cover known to the foreman to be so unsafe as to precipitate into the hold any one stepping upon it, was an incident of the employment or a detail of the work of the plaintiff, or that the danger was as open and obvious to the plaintiff as it was to the foreman as the representative of the master. It@was the duty of the defendant to furnish safe hatch covers for the men to walk on and work on, and when the hatch cover became unsafe to the knowledge of the foreman, the knowledge of the foreman was the knowledge of the master, and the master was bound to prevent the men from going upon the unsafe hatch cover until the dangerous condition had been corrected and the place restored to a condition of safety. It thus became a question of fact for the jury whether under all the circumstances the defendant had discharged its duty.
When the plaintiff disclaimed on the trial any liability because of the negligence of Hundley, the foreman, this obviously had reference to the acts of Hundley, not as the representative of the master, but to Hundley as a fellow-servant. The objection referred to is the only one relied on by this court for a reversal and dismissal of the complaint.
The remaining objections urged were not sufficient to require the setting aside of the judgment. (Kennedy v. Cunard Steamship Company, Ltd., 235 N. Y. 604.)
Judgment and order reversed, with costs, and the complaint dismissed, with costs.