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June 4, 1957

John WILLIAMS, Plaintiff,
LEHIGH VALLEY RAILROAD COMPANY, Defendant, Third-Party Plaintiff, Wm. Spencer& Son Corporation, Third-Party Defendant

The opinion of the court was delivered by: WEINFELD

The third party plaintiff, Lehigh Valley Railroad Company, and the third party defendant, William Spencer & Sons, entered into an agreement whereby the latter was to act as stevedore in unloading and loading of freight to and from freight cars and barges owned by Lehigh at its terminal pier in Jersey City.

On April 25, 1955 John Williams, an employee of Spencer, was working on an open, flat-top barge onto which steel beams were being loaded from freight cars by means of a crane operated by a Lehigh employee. All other workmen engaged in the loading operation were those of Spencer. The barge was moored to a pier adjacent to the railroad yard where the steel beams were contained in freight cars located about two hundred fifty feet from the barge. As a draft of steel was made up it was hoisted from the freight cars by the boom of the crane and then swung around and lowered to the barge where Williams and Anderson, a fellow employee, positioned and piled the beams on the open deck of the barge. Williams worked on the outboard side and Anderson on the inboard side.

Williams and Anderson started their day's work at 4 o'clock. At that time dunnage, consisting of 4 X 4s about 14 to 18 feet in length, was piled up alongside a cabin on the barge. Williams and Anderson testified that some of the dunnage was cracked, split or broken.

 The method of operation was as follows: before the first draft of steel beams was lowered they placed two runs of dunnage about 12 feet apart from bow to stern in parallel positions; then as the draft was received they placed the steel beams athwarts on top of the dunnage gradually working from the stern toward the bow; then dunnage was placed on top of the first tier of the beams and the drafts of second tier beams were put in position; and then dunnage was placed on top of the second tier to receive the third and final tier.

 The men worked until almost 11 p.m. and just when the last draft had been lowered and either Williams or Anderson had given the signal to the operator in the crane to lift up the slack and lower the draft a cracking sound was heard at the outboard side towards the bow of the barge where Williams was then working and the pile of beams in that area crashed on his foot severely injuring him. The evidence supports a finding that unfit dunnage gave way under the weight of the beams causing them to crack.

 Williams brought this action against Lehigh to recover damages charging in substance (1) unseaworthiness; and (2) negligence.

 Williams' case against Lehigh was tried to a jury but before its conclusion was settled for $ 11,500. *fn1" The instant third party suit by Lehigh against Spencer to recover that payment, as well as the reasonable and necessary expenses of trial, was continued and tried to the Court without a jury. *fn2"

 Lehigh in its third party claim relies upon its contract with Spencer, which amongst others, contains the following provision:

 'The Contractor (Spencer) assumes all liability for loss, damage or injury (including workmen's compensation) to the person or property of:

 (a) itself, its officers, agents or employees * * * arising from any and all causes in connection with the handling of freight hereunder except from the sole negligence of, or conditions created solely by the Railroad, its officers, agents or employees.'

 Spencer cencedes that under this clause if any negligence on its part contributed to the accident, then even though Lehigh was also negligent, it, Spencer, is required to indemnify Lehigh. In other words, Spencer is exonerated from liability only if the Williams injuries were due to the 'sole negligence' of, or the result of 'conditions created solely' by Lehigh.

 Spencer, as Williams' employer, was under a duty to exercise reasonable care to provide him with a reasonably safe place in which to work. *fn3" Correlatively Lehigh, since Williams was its invitee, was under a similar duty. *fn4" Thus there was a concurrent duty on the part of each to exercise reasonable care to provide Williams with a reasonably safe place in which to work, *fn5" and 'neither could devolve its duty to him upon the other, however much they might agree upon its final incidence as between themselves * * *.' *fn6"

 Williams' suit against Lehigh, as already noted, was grounded upon two theories: (1) unseaworthiness of the barge, in that the dunnage was inadequate and unfit for use; and (2) negligence in the failure adequately to light the area where he was working.

 The evidence establishes and the Court finds that there were no lights on the barge proper; that the illumination for it was supplied by three lights upon the cab of the crane located some 50 feet above the barge, and also from a light on top of a warehouse about 60 feet above the level of the dock and about 250 feet easterly from the nearest point of the barge; that the crane lights were not always directed to or upon the barge because they rotated as the cab of the crane moved, and at the times when they ...

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