(dissenting). The plaintiff was injured and the evidence justified the verdict of the jury that the cause of the injury, the fall of the barrels, was caused by the “ jumping ” of the draft, again traced to the erratic movements of the winch. Was it an unavoidable accident for which no one was responsible or was it caused by negligence? The plaintiff was in no way responsible for the condition of the winch. If it was defective and the defect brought about the injury, against whom has he the right to complain? Even though the accident was caused by the negligence of one of his fellow-servants, if there was concurring negligence of his master, or of the charterer of the vessel, they could not escape liability because the fellow-servant was negligent. It seems to me there was evidence justifying the verdict of the jury that the winch was out of order from the time its operation commenced.
Someone must have been responsible for it. There was evidence by the gangwayman that prior to the accident he called the attention of the foreman of the Auditore Contracting Company to the fact that the winch “ jumped,” and that the foreman answered him, “ All right, I am going after a machinist now.” It seems to me the jury was justified in inferring from this evidence that the foreman understood, irrespective of the complaint of the gangway-man that there was something wrong with the winch. He answers: “ All right, I am going after a machinist now.” And the gangway-man says that the foreman said: “ Keep on working, you can keep on working. I am going to get a machinist.”
. This evidence was not contradicted. The Auditore Contracting Company did not call its foreman to deny evidence of the gangwayman. The respondent says in his points that the foreman was in court. I do not know. He should have been there or his absence explained if there was any question as to the truth of the evidence of the gangwayman. Evidently the jury believed the testimony and I think they were justified in believing it.
I am inclined to the view that someone must be held responsible to these laborers for reasonable care in providing safe machinery for use in their work. In the early hours of the morning, between three and four a. m., despite the natural desire to expedite the work of loading the vessel, these men have the right to look to the performance of the duty' of their masters to see to it that they are *603given a reasonably safe place to work and reasonably safe machinery and appliances to work with. This plaintiff has been seriously and permanently injured and the jury has decided these issues in bis favor. I hesitate to reverse the verdict that this winch was defective and that the Auditore Contracting Company had actual notice of the defect which caused the injury to plaintiff.
As to the charterer, if this charter party was the same as that in Barnevo v. Munson S. S. Line (239 N. Y. 486), of course the charterer is not hable. But the charter party in that case expressly provided that there was no demise of the vessel. That charter was not a demise of the vessel. But it seems to me the charter in the case at bar was more than a mere lease of cargo space. The ship was turned over to the charterer, reserving merely the quarters of the officers and crew. The charterers appear to have been in full control.
In my opinion the judgment should be affirmed.
On the appeal of the Auditore Contracting Co., Inc., judgment and order denying new trial reversed upon the law and the facts, and a new trial granted, with costs to abide the event. On the appeal of defendants Galanos and Louloudis, judgment reversed upon the law, with costs, and complaint dismissed, with costs.