Negligence, Employer's liability. Where an employee of a railroad company, while at work helping to unload a vessel which the railroad company neither owned nor had anything to do with except to unload it after it had been made fast by the vessel's crew at a dock of the railroad company, was injured by the fall of a piece of iron which was a portion of a hatch combing, a part of the vessel, and it does not appear what caused the iron to fall nor that the railroad company or any of its employees knew or ought to have known that there was any danger that it would fall, the railroad company is not liable for such injuries either at common law or under R.L.c. 106, § 71.
RUGG, C.J.
This is an action of tort for personal injuries with counts at common law and under the employers' liability act. The plaintiff was put at work unloading coal from a vessel which had been made fast by its crew at the defendant's dock. The defendant did not own the vessel, and had nothing to do with it except to unload the coal. The plaintiff was injured by the fall of a piece of iron, which was a portion of a hatch combing, a part of the vessel, and a protection of its hatches. There is nothing to show what caused the iron to fall. If it be assumed that it was defective, this was a defect in the ship, for which under Hyde v. Booth, 188 Mass. 290, and decisions there cited, the defendant was not responsible. It was the defendant's duty to warn the plaintiff of any danger of which it knew and of which he was ignorant and ought not to be assumed to have known. But there is nothing here to show that the defendant or anybody in its employ had knowledge of the danger which caused injury to the plaintiff. Hughes v. Malden Melrose Gas Light Co. 168 Mass. 395.
The case appears to be indistinguishable in its facts from Dunn v. Boston Northern Street Railway, 189 Mass. 62, and Hyde v. Booth, supra. It is not like Crimmins v. Booth, 202 Mass. 17, where by contract the defendant stevedore had such possession and control over the ship as constituted a temporary appropriation of it by him for the purpose of performing his agreement with the ship owner.
Judgment for the defendant.