Davies

— This is an action by the plaintiff, as administratrix, to recover damages for the death of H. B, Davies; the complaint alleges that said death was caused by the negligence of defendant, its servants and employees. Plaintiff recovered judgment for the sum of seven thousand dollars.

1. It is claimed by the appellant that the complaint does not state a cause of action, in that it does not show that the defendant failed in the discharge of any duty it owed to the deceased. It is urged that the negligence with which appellant is charged is the leaving unprotected an open hatchway on its vessel, through which the deceased fell and was killed, and we have been referred to the cases of Dwyer v. National S. S. Co., 17 Blatchf. 474 , and The Bark Germania, 9 Ben. 356 , which hold that so doing is not negligence for which an action will lie. These cases are not in point. It is true, the complaint alleges that the hatchway through which deceased fell was negligently left unprotected, but this is only part of an averment the gist of which is, that deceased was lawfully employed on the vessel, and “by and through the carelessness and negligence of said defendant, and its servants and…