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Tamaseric v. Beckwith

Supreme Court of New York, Appellate Division

May 3, 1911

RADE TAMASERIC, as Administrator, etc., of ADAM TAMASERIC, Deceased, Respondent,
v.
CLINTON BECKWITH, Appellant.

Page 79

APPEAL by the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of May, 1910, upon the verdict of a jury for $2,500, and also from an order entered on the 18th day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.

The action was commenced on the 4th day of September, 1909, to recover damages resulting from the death of plaintiff's intestate, alleged to have been caused solely through the negligence of the defendant. Recovery is sought under the provisions of the Employers' Liability Act, so called, and also upon the principles of the common law. (See Laws of 1902, chap. 600; Labor Law [[Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14.)

It is urged on behalf of the appellant that the notice served in alleged compliance with the requirements of the Employers' Liability Act is insufficient, and, therefore, that no recovery can be predicated upon the provisions of that act. Also, that the complaint did not allege any cause of action which the evidence tended to establish. The appellant also contends that under the Employers' Liability Act or at common law there was no evidence which tended to prove actionable negligence as against the defendant.

COUNSEL

A. H. Cowie, for the appellant.

Clifford H. Searl, for the respondent.

MCLENNAN, P. J.:

So far as the physical facts are concerned, and the manner in which the work was being done, which resulted in the accident, there is hardly a controversy. The accident which is the subject of this litigation and which resulted in the death of plaintiff's intestate occurred on the 22d day of July, 1909. At the time of the accident the deceased, who was a common

Page 80

laborer in defendant's employ, was engaged with a number of other employees, constituting what is called a gang, in laying thirty-inch cast iron pipes, weighing about 5,000 pounds each, in a trench, which pipes when laid in such trench were to be a part of a system to convey water from Skaneateles lake to the city of Syracuse, being done under defendant's contract, which comprised several miles of such work. One Perkins was the general superintendent in charge of the work, but the evidence clearly shows that one Reynolds was in charge of the particular job in question and was acting as superintendent at the time of the accident. It clearly appears that he had authority to direct as to the method of doing the work and that the deceased and all the other employees under him were subject to his control and command.

It appears without contradiction that the ditch which had been constructed by another gang of laborers was located upon what may be called a side hill, the pipes to be placed in such ditch being distributed along the top, and the incline from the place where such pipes were left to the farther edge of the ditch was about forty degrees.

The method employed by defendant's superintendent to get these pipes into the ditch was substantially as follows: Two skids, about fourteen feet long and six inches square, were placed over the top of the ditch at an incline, as we have said, of about forty degrees, and extending up the bank toward the place where the pipes were located. These two skids, so called, placed immediately over the ditch, were at each end laid on the surface of the ground, and, as the evidence tends to show, in soft material. There was a cleat or wedge nailed on one of the skids at a point immediately over the center of the ditch. The evidence also tends to show that the skid on which such wedge was nailed was winding or out of true. Such skids being thus placed in position and resting, as we have seen, upon the surface of the ground, or upon dirt recently thrown out of the trench, defendant's employees were directed by the superintendent to lower one length of pipe from the brow of the hill. That was done as was the custom by putting ropes around the pipe, taking a half-hitch around a tree, there being plenty of them on the bank, and letting the pipe down the incline

Page 81

and onto the skid until such pipe struck the wedge on one of the skids, which was immediately over the center of the ditch. When that point had been reached with the pipe the foreman or superintendent gave orders to the men to let go of the rope, which they did; then plaintiff's intestate, under the direction of the superintendent, sought to place a four-legged derrick over the pipe, two legs on each side of the trench, it being intended when such derrick was properly placed with a sling about the pipe to raise it by means of the derrick, take out the skid from under it and then to lower it to the bottom of the trench. While plaintiff's intestate was thus engaged in placing the derrick, the skid upon which there was a wedge turned over on its side, leaving the pipe without any wedge to hold it in place, and it went down ...


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