Sarah Bishop and Annie Haines, as Administratrices, etc., of Albert R. Bishop, Deceased, Respondents, v. Atlantic Stevedoring Company, Appellant

Sarah Bishop and Annie Haines, as Administratrices, etc., of Albert R. Bishop, Deceased, Respondents, v. Atlantic Stevedoring Company, Appellant. Ships and shipping — negligence — assumption of risk as to open hatch for jury. Appeal by the defendant from a judgment of the Supremo Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of May, 1921, and also from an order entered in said clerk’s office on the same day, denying a motion to set aside the verdict and for a new trial. [MAJORITY — Per Curiam:] Per Curiam: We think the evidence presented a question of fact whether defendant was guilty of negligence in failing to cover or protect the unused open hatch, especially in view of the request for that safeguard made by one of the fellow-workers of the decedent. A question of fact was also presented as to the negligence of the foreman in directing decedent to dislodge or remove the heavy truck from the obstructing stanchion without shutting off the steam. The evidence justified the verdict of the jury that the defendant was negligent in one or both of these particulars. The defendant asked the trial judge to charge in effect that decedent assumed the risk presented by the open hatch and the failure to shut off steam; the trial justice left the question to the jury. The exception to this refusal was the only exception to the charge. On the whole case we think the question of assumption of risk was for the jury. (Fitzwater v. Warren, 206 N. Y. 355, 358; Dowd v. N. Y., 0. & W. R. Co., 170 id. 459; Davidson v. Cornell, 132 id. 228; Johnston v. Fargo, 184 id. 379; Felcin v. Society of New York Hospital, 155 App. Div. 545.) The judgment and order should be affirmed, with costs. Present — Blackmar, P. J., Mills, Rich, Putnam and Kelly, JJ. Judgment and order unanimously affirmed, with costs.