Marczinak v. J. B. King Transportation Co.

The action is to recover for personal injuries sustained by plaintiff, who was employed by the defendant as a deckhand upon one of its lighters, and is brought under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352).

The lighter upon which plaintiff was employed was being moved from a dock, and in the process the stem of the boat was permitted to swing out into the river by the action of the tide while the bow was fast to the dock. The first mate was stationed in the bow and was engaged in paying out the hawser which ran from the bow of the boat, to which it had been made fast, around a pile on the bulkhead and back to a bitt on the bow of the boat, around which a couple of turns had been taken. The plaintiff was engaged, at the side of the mate and under his direction, in an attempt to straighten out the end of the hawser which had become tangled, and while so engaged the mate at the command of the captain cast the line off, the engines were started back, and as the hawser began paying over the side plaintiff became entangled in it and was drawn into the water and up against the pile, where he was held in such a manner that the force and strain of the hawser as it was drawn around the pile amputated his foot. It is not contended that there was any negligence on the part of defendant before plaintiff was precipitated into the water, and the sole question upon this appeal is whether there was evidence from which a jury would be warranted in finding defendant negligent in the subsequent management of the lighter. The plaintiff immediately made an outcry, and the mate called to the captain, informing him that plaintiff had been drawn overboard and asked that the boat be stopped. The request was not complied with. There is evidence that the lighter was *58backing into the stream very slowly; the mate testified that she was going at the rate of one mile per hour. It was the duty of defendant’s captain, when informed that plaintiff was overboard, to use reasonable care, not only to prevent further injury, but to rescue the unfortunate man if it could be done by the exercise of the care and prudence of a reasonably careful pilot placed in his position at the time. There is evidence from which the jury might have found that the captain was unmindful of his duty to the plaintiff and that the accident was occasioned in consequence of his negligence. He knew that plaintiff had been drawn overboard, the mate had asked him to stop the boat, and it is claimed that this might have been done in time to avoid the accident. He backed the boat forty-five or fifty feet after the notice and before plaintiff’s foot was amputated. In reference to the contention that the captain was engaged in making a difficult maneuver at the time, I cannot find that an unusual or extraordinary situation was created by backing at the rate of one mile per hour into a three-mile tide, and I think the jury might properly have found, as they did, that the captain failed to exercise the reasonable degree of care which would have avoided this accident. It was for them to say.

The learned justice who presided at the trial, however, has set the verdict aside on the ground that it is against the weight of the evidence. He observed the witnesses and may be right. As the truth will be developed upon a retrial, I advise that the order be affirmed, without costs.

Jenks, P. J., Thomas, Carr and Mills, JJ., concurred.

Order affirmed, without costs of this appeal.