[114 N.Y.S. 265] John C. Robinson, for appellant.
Gregg, O'Leary, Frank & De Witt, for respondent.
Argued before WOODWARD, JENKS, HOOKER, RICH, and MILLER, JJ.
The defendant was engaged in the construction of, and the installation of machinery in, five connected stone buildings or sheds. The accident happened in a span 40 feet wide and 450 feet long, along either side of which, 25 feet from the floor, was a beam, 8 to 10 inches wide, supporting a track upon which a traveling crane was run. The plaintiff was directed by his foreman, who had the superintendence of the carpenters to put in some window frames. He wanted to construct a scaffold upon which to stand, but was told by said foreman to stand upon said beam. While he was thus engaged at the work, another workman, engaged in some other work, started the crane and caused it to run over the plaintiff's foot, inflicting the injury for which he has recovered in this action. The defendant's superintendent, Stone, testified:
" They (meaning the carpenters) had used the runway. We had a rule there that the runway was not to be used except by my permission unless it was work that they did not consider dangerous. We considered we could hang windows without going on the rail. If we were doing work that necessitated standing on the runway, they got permission from me, and I had the current shut off."
It thus plainly appears to have been assumed by those in charge of the work that a man doing the plaintiff's work could stand upon a 10-inch beam without being in any danger of being injured by the crane, moving along and upon it, and hence no precaution was taken by the foreman, when he directed the plaintiff to stand upon the beam, [114 N.Y.S. 266] to see that the electricity was turned off, and none was taken by the superintendent to see that the carpenters, standing upon these beams, were protected, although he knew that the beam was used as a scaffold by the carpenters in putting in the window frames, and although he and the foreman must have known that the crane was liable to be moved at any time if the electricity was not turned off, for it appears that any of the workmen could use the crane. Hence I think the evidence justified the submission of the case to the jury as one to recover for a negligent act of superintendence within the meaning of the employer's liability act, and the case was submitted to the jury on that theory. This was excepted to, and the judgment is challenged for the insufficiency of the notice.
If the exception was well taken, the judgment must be reversed, irrespective of whether there was evidence tending to establish the negligence of the master for failure to furnish a safe place, because it does not necessarily follow that, if there was a negligent omission of duty on the part of the superintendent, there was a negligent omission of the common-law duty of the master to furnish a safe place.
The notice is as follows:
" Long Island City, N. Y., January 24, 1907.
" Wm. Bradley & Son, 277 Broadway, New York-Gentlemen: Please take notice, that I have a claim against you for personal injuries sustained by me on the 3d day of January, 1907, while in your employ at your factory on Vernon avenue, Long Island City, by reason of your failure to furnish me with a safe and proper place in which to do the work which I was engaged to do by you, in that there was no proper platform or scaffold furnished from which to do the work; and in failing to furnish proper, safe and suitable appliances with which to work; in failing to exercise reasonable diligence, care and prudence in the premises; and in failing to furnish competent fellow servants.
" Respectfully yours, Louis Young,
" By Gregg, O'Leary, Frank & De Witt, Attorneys.
" 162-68 Jackson Avenue, Long Island City, N. Y."
Eliminating the general statements of negligence ( Palmieri v. S. Pearson & Son, 128 A.D. 231, 112 N.Y.Supp. 684, and cases cited), we find that it is stated that the plaintiff's injuries were due to the master's failure to furnish a " proper platform or scaffold." While that was not an accurate statement of the specific cause of the injury, it was an attempt to state a specific cause. The injury was in fact caused by the crane running over the plaintiff's foot. The one who prepared the notice evidently had in mind that the beam was not safe for use as a scaffold in view of the danger from the traveling crane, which might be used at any time, unless some precaution was taken to guard against it, and so stated that the injury was caused by the improper platform or scaffold. It must be granted that the notice did not comply with the ...