Page:Federal Reporter, 1st Series, Volume 4.djvu/510

 e9d FEDEBAIi BEFOSTER. �More in point are the cases where injury has ariaen from man-traps, bywhich apersonhas been lured into a dangerous position, to his injury, although it is not clear that a grati^-g upon a ship's hatchway can in any proper sense be said to be a lure. Indeed, I do not find any adjudicated case that can be considered authority for holding that a ship's hatchway, wholly unoovered as to a large portion, and insecurely cov- ered as to a small portion, by reason of an improperly-placed section of the grating, about which stevedores and elevator men were at work, is calculated to expose the men to an un- foreseen or unnecessary danger. �The character and uses and location of a ship's hatch, even when wholly covered by a grating, are calculated rather to warn than to induce a person to stand upon the grating, and certainly such would be the case when, as here, only a por- tion of the grating was upon the hatch. But if it be assumed in this case that the presence of some of the sections of the grating upon the hatchway at which the deceased was work- ing gave him the right to suppose that those sections afforded a safe standing-place, the liability of the defendant does not appear until it be shown that the insecure section was put in its unsafe position by the defendant. As has been seen, no liability attaches to the defendant by reason of a failure to discbarge a known duty. If the defendant is liable at ail, that liability arises not from an act of omission. He had the right to omit to cover the hatchway, and the bare fact that it was wholly uncovered, or partly unoovered, is not sufficient, therefore, to establish his liability. He is liable, if at ail, for an act of commission, namely, the act of placing the grating upon the hatch in a negligent manner, or the act of disturb- ing the grating after it had been placed upon the hatchway in a proper manner. �The decisive question, therefore, is whether there was suffi- cient evidence to authorize the jury to find that the defendant improperly placed the grating upon the hatchway, or disturbed it after it had been once properly placed. Here the case of the plaintiff rests upon the presumption that everything done on board the steamer, in respect to the hatchway, waa di- ����