Opinion
February 15, 1955.
Present — Peck, P.J., Cohn, Breitel and Bastow, JJ.
Judgment unanimously reversed, and costs to appellant, the complaint dismissed and judgment is directed to be entered in favor of defendant, with costs. The undisputed photographs demonstrate that the stairway railing did not end until the top step of the stairway in question. Consequently, any testimony to the contrary is not believable. In addition to the fact that it led to the top step, the only credible evidence showed that the railing was but ten and one-half inches from the door jamb and only eight and one-half inches, a mere hand-span, lower than the door knob. Thus, there was no showing of unseaworthiness in the construction. The accident occurred not by reason of negligence or unseaworthiness but because of a sudden lurch of the vessel in a mountainous sea, occurring in a storm of extreme gale proportions that witnesses, supported by other evidence, testified was one of the worst they had experienced at sea. Settle order.