The opinion of the court was delivered by: BYERS
Decision was reserved at the close of the trial of this cause on March 20, 1950, of motions to set aside a plaintiff's verdict, and for a directed verdict in favor of defendant. Counsel were given until April 3rd to submit briefs with the trial minutes, and pursuant to telephone request, that time was extended to April 7th, on which day all briefs were filed.
This is a Jones Act case, 46 U.S.C.A. § 688, in which recovery of damages is sought by the Administratrix of Azariah Mercer, deceased, a bargee in defendant's employ, for his death which is said to have occurred on November 8, 1947, the allegations being:
'That on or about the 8th day of November, 1947, while the decedent, Azariah Mercer, was attempting to reach a scow upon which he was employed for certain purposes in the course of his employment he lost his balance and fell into the water and was drowned due to the fact that the defendant had failed to supply any light or artificial illumination which would have guided the decedent, Azariah Mercer, in reaching the scow on which he was employed.'
That the place where the scow and others were located was in darkness, 'making it unsafe and dangerous for Azariah Mercer and others to reach their various and respective scows.'
That he was in the continuous employment of defendant whose duty it was to provide him 'a safe and sufficient place in which to be employed and upon which to live.'
That the defendant knowing that scow captains 'would have social intercourse with each other which was in the line of duty failed to give that degree of safety to the decedent * * * which was customarily given in the Port of New York by scow owners to all scow captains similarly employed. That the defendant failed to take proper means and precautions to avoid the happening of the accident (Italics supplied) failed to have that degree of illumination that other employers under like circumstances (Italics supplied) customarily provided for their employees although defendant had notice of the fact that there was no light to guide the various captains on their journeys to and from their vessels.'
It is also alleged that 'On or about the 8th day of November, 1947, the decedent, Azariah Mercer, fell from a scow into the water and was drowned.'
Only the proof for the plaintiff will be considered on this motion, and it may be briefly summarized as follows:
1. The decedent was scow master on the defendant's scow John Port which was one of flotilla of about 19 light scows arriving at the defendant's quarry and plant at Tompkins Cove on the West Shore of the Hudson above Haverstraw on November 8, 1947, during the afternoon of that day, which was a Saturday. The scows were not to be loaded until the following Monday, as the plant did not operate on this Saturday.
2. The scows were moored in two tiers out from a timber structure built on piles, extending out into the river and which is called a walk-way. It is in effect a narrow pier, containing a 30 inch planking for the use of those whose business takes them to and from the scows or barges. There is a hand-rail opposite the piles which rises perhaps three and one-half to four feet above the footway.
There is no testimony on the subject but from the photographs in evidence (Exhibits 2 and 3), it would seem that the tops of the sides of the scows when they are light, is about at the level of the walkway.
3. The out-river tier contained 10 scows which were separated by about two feet from one another, and held in place by fore and aft lines.
The inshore tier contained 9 scows similarly held, and there was open water between the two tiers of 8 to 10 feet. The out-river ends of these scows headed north, which means that the tiers extended easterly from the walkway.
4. Mercer's scow was the fourth from the walkway in the second tier directly ahead of the scow McKinstry, as the latter lay with her stern (cabin ...