Appeal from Trial Term, Queens County.
Action by Patrick Simpson against the Foundation Company for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial ordered.
Where a petition for negligence is based on the failure to furnish signalmen to warn plaintiff of danger, and does not show that the cause of the accident was one for which the master is liable under the provisions of Laws 1902, p. 1748, c. 600, § 1, making a master liable for the negligence of an employé whose whole or part duty is that of superintendence, the petition is for common-law negligence, and the statute has no application.
[116 N.Y.S. 879] Frank
V. Johnson, for appellant.
Charles J. Nehrbas, for respondent.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
The plaintiff brings this action to recover damages for personal injuries sustained by him while in the employ of the defendant on the 27th day of June, 1906, on the premises at the corner of Broadway and Thames street, in the borough of Manhattan. The case was closely contested, and the evidence appears sufficient to sustain the verdict; but, owing to errors in the trial, the judgment should be reversed.
The complaint, aside from the formal averments, sets forth that " in order to protect the life and limb of plaintiff in his employment about said premises, under chapter 600 of the Laws of the State of New York of the Year 1902, it was the defendant's duty to furnish safe appliances and devices, competent and a sufficient number of servants to operate said devices and appliances, a safe set of signals, or other devices to warn plaintiff of the approach of swinging things, such as derricks, buckets, and hoisting machinery, and in the nighttime a sufficient number of lights and like appliances about said premises, so that plaintiff could see about him with reasonable clearness and accuracy; that at the time aforesaid the defendant operated a derrick and bucket, which swung, raised, and lowered in and about said premises, and in utter disregard of its duty to the plaintiff failed to supply a sufficient number of servants to operate said apparatus, failed to furnish or supply signalmen at various points about said premises to warn plaintiff of the approach of said apparatus, or any of its parts, failed to furnish or supply other signals or appliances, of any kind whatever, to warn plaintiff of the approach of said apparatus or any of its parts, and failed to supply sufficient electric lights, or any other kind of light, in the nighttime to enable plaintiff to see about said premises with reasonable clearness, so that said premises were dark; that solely as a result of the defendant's negligence as aforesaid, and without any fault or negligence on the part of the plaintiff," the latter was struck by one of the buckets, with the resulting injuries. The complaint then alleges the sending of a notice under the provisions of the employer's liability act (Laws 1902, p. 1748, c. 600), and demands judgment for the sum of $75,000.
It is to be observed that, with the exception of the alleged service of the statutory notice and a reference to the provisions of chapter 600, p. 1748, of the Laws of 1902, there is no allegation of a single fact to bring the case within the provisions of the employer's liability act. The negligence which is specifically alleged, and which is said to be the sole cause of the injuries, is common-law negligence. The common-law right of action is not changed or regulated by the provisions of chapter 600, p. 1748, of the Laws of 1902, as we distinctly held in the case of Rosin v. Lidgerwood Manufacturing Co., 89 A.D. 245, 86 N.Y.Supp. 49, and this doctrine was specially approved by the Court of Appeals in Gmaehle v. Rosenberg, 178 N.Y. 147, 152, 70 N.E. 411.It is true that in the case of Harris v. Baltimore Machine & Elevator Co., 112 A.D. 389, 98 N.Y.Supp. 440, Mr. Justice Gaynor, with his usual accuracy of distinction in matters of [116 N.Y.S. 880] pleading, pointed out that it was not necessary, or even proper, in a complaint, to allege that the negligent act of the defendant was that of a superintendent, as this was a mere matter of proof; but the Court of Appeals, in affirming that decision, say ( 188 N.Y. 141, 144, 80 N.E. 1028, 1029):
" It is not necessary, in order to plead a cause of action under the employer's liability act, that its precise language should be made use of, provided that it appear plainly from what is alleged that the cause of action was within the provisions of the act and that its requirement of the giving of a notice to the defendant has been complied with."
It must appear from the pleadings that the cause of the accident is one for which the master is liable under the provisions of chapter 600, p. 1748, of the Laws of 1902, or there is no place in the action for the notice, and it is not governed in any of its details by the provisions of that act, but stands solely upon its common-law basis. " In Ward v. Manhattan Railway Co., 95 A.D. 437, 88 N.Y.Supp. 758, this court," say the court in Curran v. Manhattan Railway Co., 118 A.D. 347, 349, 103 N.Y.Supp. 351, 353," made the observation that, as it then construed the employer's liability act, the provisions of sections 1 and 2 could not be taken advantage of except the action was brought under the act, but that the provisions of section 3, respecting the assumption of risks, applied to all actions by an employe against his employer, whether under the act or at common law. Further consideration has led us to conclude that, in order to entitle an employe to the benefit of the provisions of the employer's liability act, he must bring his action under that act and conform to its terms in so doing ( Chisholm v. Manhattan Railway Co., 116 A.D. 320, 101 N.Y.Supp. 622), and that in an action for common-law negligence he is not entitled to the benefits of its provisions, but must be governed by the rules of the common law."
This being the law, and the plaintiff having pleaded only a common-law action, he had no right to introduce in evidence the alleged notice served upon the defendant, even assuming that the notice would have been a proper one in an action under the statute. This alleged notice, which was prepared by the plaintiff's attorney, and which was introduced in evidence over the defendant's specific objection that the cause of action pleaded was one at common law, and not under the statute, reads as follows:
" Please take notice that Patrick Simpson claims and demands from the Foundation Company $50,000 for damages sustained by said Simpson as a result of personal injuries caused by the negligence of the Foundation Company on June 27, 1906. Said negligent acts occurred in a building in the course of construction which is situated on Broadway (west side), near Cedar street, in the borough of Manhattan; *** the said Foundation Company having been at said time engaged in building the foundation for said building and while said Simpson was in their employ. Said accident was caused by the failure of the said Foundation Company to provide proper protection for the said Simpson in his employment, and as a result thereof, said Simpson was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit, whereby he sustained serious injury. This notice is given pursuant to chapter 600 of the Laws of 1902 of the State of New York, and the said Patrick Simpson intends to bring action therefor."
[116 N.Y.S. 881] It will be noticed that this notice does not mention any negligent act on the part of a superintendent; that it does not suggest any defect in the ways, works, or machinery. It merely alleges matters which go to make up a common-law cause of action for negligence, and it has no ...