Charles Cleveland, Respondent, v. The New Jersey Steamboat Company, Appellant

Charles Cleveland, Respondent, v. The New Jersey Steamboat Company, Appellant. (Argued May 2, 1882; decided June 20, 1882.) This action was brought to recover damages for injuries .alleged to have been sustained through defendant’s negligence. It is reported on a former appeal in 68 N. Y. 306. Plaintiff, who had taken passage on one of defendant’s steamboats from Eew York to Albany, when standing near the gangway opening, a rush of passengers to see a man who had fallen overboard occurred, and he was shoved overboard and injured. A gate was provided for this gangway, which was ordinarily put in its place after the boat left the wharf. The top bar of the gate projected at each end, and these projecting ends, when the gate was in place, rested in two iron staples; and there were two upright stanchions, outside of the gate, let into the deck. There was also a top rail which received these stanchions, and was secured in its place by iron slides. The negligence, complained of on the former trial, was the omission of defendant to have the top rail in place at the time of the accident. It appeared that the gate was put in place, and was lifted out by some one while the mate had turned to get the top rail. On the second trial .plaintiff sought to show that the gate itself had not been put in place, and this question was submitted to the jury, to which defendant excepted. The court here, after a review of the evidence, held that the fact that the gate was put in its place was established by uncontradicted evidence, and that the submission of the question to the jury was error, W. P. PrenUce for appellant. Francis Kernan for respondent, [MAJORITY — Tbaoy, J.,] Tbaoy, J., reads for a reversal and, new trial, All concur. Judgment reversed.