The plaintiff recovered a judgment against the defendant for damages in causing the death of her husband and intestate. The Appellate Division has reversed the judgment, as stated in the order, "upon questions of law only, the facts having been examined and no error found therein," so that every material fact which has some evidence to sustain it is deemed to be established by the verdict and the affirmance on appeal.
The intestate was killed while in the service of the defendant by an explosion of dynamite on the 22d of December, 1899. The plaintiff was appointed administratrix on the 8th day of May, 1901. This action was commenced on the 9th day of December, 1901, and the notice required by statute to be served was not filed with the corporation counsel until the 25th day of June, 1901. It will be seen, therefore, that the statutory notice was filed with the defendant's counsel within two months after the plaintiff's appointment as administratrix. The action was commenced within twenty months after the accident and death and within five months after letters were issued.
The learned court below held that the notice of the plaintiff's claim was served too late and that the action was not commenced in time, and so, for both reasons, the plaintiff's right to commence the action was barred by statute. All this is deduced from a construction of the statute, chapter 572 of the Laws of 1886, which reads as follows:
"No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer *Page 399 thereof within six months after such cause of action shall have accrued."
It will be seen from a careful reading of this statute that it relates only to actions for damages for personal injuries. It will also be seen that the limitation commences to run within six months and one year, respectively, after the cause of actionshall have accrued. The learned court below has held that this is an action to recover damages for a personal injury, and also that the limitations commenced to run, not from the time that the plaintiff was appointed administratrix, but from the time of the death of her husband. So that if, for any reason, administration cannot be obtained until more than six months after the death of the intestate, the action is barred and there can be no recovery. I think that both of these propositions are founded upon a legal error and upon an extreme and unwarranted construction of the statute.
This action was unknown to the common law, and is purely a creation of statute. The common law never designated such a case as an action for personal injuries, nor has any statute ever called it by that name, or treated it as such. It is defined by the Code as "an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death." (Code Civ. Proc. sec. 1902.) It requires a good deal of refined and subtle argument to prove that such a case is an action for damages for personal injuries. What person before the court in such cases has sustained an injury which is personal, within the meaning of that term as used in the law? By section 382 of the Code, an action for a personal injury may be commenced within six years, and when the injury is caused by negligence within three years. (§ 383.) In framing these limitations it is plain that the legislature never supposed that an action such as the one at bar was included in the term "personal injury." An action for damages for personal *Page 400 injury is an action wherein a living party who is before the court has sustained an injury to his person.
It is equally clear, it seems to me, that the cause of action in this case did not accrue until the appointment of the plaintiff as administratrix. By section 415 of the Code of Civil Procedure, it is provided that limitations "must be computed from the time of the accruing of the right to relief by action * * * to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding." This is a plain provision that the right of action does not accrue until some one is in a position to bring and maintain the action, and the limitation must be computed from that time up to the time that the action is actually commenced. The notice which the statute requires to be served within six months after the cause of action has accrued must contain a statement that the party giving the noticeintends to commence an action. The absence of such a statement vitiates the notice. (Curry v. City of Buffalo, 57 Hun, 25.) Who is to give the notice? It is very obvious that inasmuch as no one can bring such an action except a personal representative of the decedent the notice must come from him, and of course he cannot give any such notice until his appointment. A notice served by a stranger, or any one else except a personal representative of the deceased, who alone is entitled to bring the action, would be clearly insufficient, and the defendant could treat it as a nullity. These considerations, that are fairly deduced from a reading of the statute, and other statutesin pari materia, point clearly to the conclusion that the cause of action does not accrue until the personal representative of the decedent has been duly appointed.
In the opinion of the learned court below some cases are cited from the courts in this state as in support of a contrary proposition. These cases have been carefully examined and it is perfectly safe to say that none of them touch the question in this case. In none of them was the question in this case at all involved. One of the authorities cited is a recent *Page 401 decision from this court (Matter of Meekin v. B.H.R.R. Co.,164 N.Y. 145), where it was held that a cause of action resulting in death, brought by the personal representative of the deceased, survives the death of the sole administrator, who was also next of kin — a proposition that, obviously, has nothing to do with this case. A statement in the opinion of Judge VANN, at page 148, throws some light upon the nature of the action. "While a personal injury must cause the death, damages are allowed, not for an injury to the person deceased, but for an injury to the estate of the beneficiary." So we have here the plain declaration of this court that an action, such as that at bar, is not an action to recover damages for a personal injury, either to the decedent or to the beneficiary named in the statute, but an action to recover damages to the estate of the latter. There is one case cited from a Kentucky court which apparently sustains the decision below, but in the same opinion another case is cited from the Supreme Court of Connecticut which holds directly the other way. So that these decisions in other jurisdictions may be fairly offset one against the other.
But the decisions in this state are clear and cover the precise point. In Barnes v. City of Brooklyn (22 App. Div. 520) the question as to the time when a cause of action accrued under this statute was involved, and it was not embarrassed by any other question in the case. It arose upon a demurrer, and so the controversy was reduced to a pure question of law. The opinion of the court was delivered by Justice BRADLEY, formerly a member of this court, and it bears upon its face the evidence of that careful research and examination and deals with the question throughout with that discrimination and broad common sense for which he was so justly distinguished. I am not able to make any argument on this question that would present it in a more clear and simple light. The learned judge commences by inquiry as to the meaning of the word "accrue," as found in the law dictionary, and he pursues the inquiry through the earlier *Page 402 decisions of this state and the decisions of the English courts, down to the latest utterance of this court that could throw any light upon the subject; and he reaches the conclusion, in which the other members of the court apparently concurred, that it was always the law of this state that a cause of action did not accrue until some person was in existence capable of bringing and maintaining the action. It is unnecessary to make further reference to the authorities cited by the learned judge, but they seem to completely cover the point. The construction placed upon the statute by the learned court below, wherein it was held that the plaintiff's action was barred, seems to me to be erroneous.
But the learned counsel for the defendant, upon the argument in this court, has attempted to sustain the judgment upon certain exceptions which are found in the record and which do not appear to have been noticed by the court below at all. This court ought not, I think, to go out of its way to sustain a judgment upon some debatable point that was not considered or passed upon by the court below. The exceptions in this case rest entirely upon the ruling of the trial court refusing to nonsuit the plaintiff. In other words, this branch of the argument must assume that there were no questions in the case to submit to the jury. It will be noted that most of the grounds stated by counsel in his motion for a nonsuit were so general that they presented no question of law in this court, or they were of such a character that the questions presented were for the jury. A motion for a nonsuit is ineffectual to raise any question in this court, unless the grounds upon which it is based are specified. The defect in the plaintiff's case should be pointed out so that he may supply it if he can. (Gerding v. Haskin, 141 N.Y. 514,520; Sterrett v. Third Natl. Bank of Buffalo, 122 N.Y. 659;Quinlan v. Welch, 141 N.Y. 158; Booth v. Bunce, 31 N.Y. 246;Binsse v. Wood, 37 N.Y. 526; Thayer v. Marsh,75 N.Y. 340; Ross v. Caywood, 162 N.Y. 259.) There are numerous grounds stated in the motion for a nonsuit in this case, but only two of them raise any question of law for *Page 403 this court. One is that the defendant had not been guilty of any negligent act or omission, and the other was that the decedent had not been shown to be free from contributory negligence. These grounds are quite general, but I will assume that they were sufficient to raise the question of law which will now be briefly discussed.
The defendant cannot prevail in this court without showing that there was absolutely no evidence to submit to the jury on these propositions. The question in this case was not that the deceased was ignorant of the danger incident to the general use of dynamite as an explosive in blasting, but whether he was ignorant of the method of thawing it out when frozen, and if he was, whether the master gave him any instructions as to the method adopted and which resulted in his death. The precise issue which the plaintiff presented was that her husband was set to work by the defendant, not in firing off and exploding dynamite, but in thawing it out and preparing it for use, a work he had never been engaged in before and by a process with which he was unfamiliar, and that he received no instructions from the master or any one else as to the danger involved, or as to the means of guarding against it.
The law applicable to such an issue of fact is perfectly plain and was presented to the jury by the learned trial judge in substantially the language of the authorities. "The master must, therefore, give notice to his servants of all perils to which they will be exposed, other than such as they should, in the exercise of ordinary care, have foreseen as necessarily incidental to the business, in the natural and ordinary course of affairs, though more than this is not required of him. It makes no difference what is the nature of the particular peril, or whether it is or is not beyond the master's control. Thus the master is responsible for his omission to warn his servant against the risk of a felonious attack upon him, by the master's enemies, if he was himself aware of the danger. And it is not enough for the master to use ordinary care and pains to give such notice. Ordinary care requires *Page 404 that he should actually give the notice, and not merely try to give it. If, therefore, he fails to give such notice in terms sufficiently clear to call the attention of his servants to the peril of which he is aware, he is liable to them for any injury which they suffer thereby in ignorance of that peril and without contributory negligence." (Shearman Redfield on Negligence, § 203.) The same rule is laid down in substantially the same language in the United States Supreme Court and in this court. (Mather v. Rillston, 156 U.S. 391; Gates v. State ofN Y, 128 N.Y. p. 226; Simone v. Kirk, 173 N.Y. p. 13;Pantzar v. Tilly Foster Iron M. Co., 99 N.Y. 368; Benzing v. Steinway Sons, 101 N.Y. 547; Finn v. Cassidy, 165 N.Y. 584. ) In Simone v. Kirk (supra) Judge VANN states the principle in a few words: "Certain work is inherently dangerous, and yet the master has the right to hire servants to do it. In such cases, however, unless the danger is obvious to an ordinary observer, it is his duty to give them due warning, so that they may refuse to work if they do not wish to run the risk, and proper instructions, so that if they enter upon the work they may be able to take care of themselves."
It has already been observed that the only question presented to the jury was the question arising upon this rule of law. The evidence in the case upon the part of the plaintiff was substantially without a conflict as to the fact that the deceased was set to work thawing out dynamite, having had no experience whatever at that work. It would be useless, I think, to argue that there was no evidence for the consideration of the jury on that point. As to the contributory negligence of the deceased there is no evidence in the record that would warrant the trial judge in taking that question from the jury. The only basis for imputing contributory negligence to the deceased is to be found solely in the fact that he obeyed the master's representative in engaging in a work that he was ordered to perform, but as to which he was without any experience. It is quite unnecessary to argue that such conduct on the part of the servant does not constitute contributory *Page 405 negligence as matter of law. The master's representative not only omitted to give the servant instructions or warning as to the nature of the work, but assured him that the operation of thawing the dynamite was perfectly free from danger. The method adopted by the defendant was to have it placed in a galvanized iron pail, which was put inside of a sheet-iron furnace, and the furnace having been heated on the outside, the heat was communicated to the dynamite, and, on the occasion in question, caused it to explode. There was evidence in the case from experts and other witnesses in behalf of the plaintiff tending to show that this method was not a safe one to adopt, and, moreover, it appeared that the furnace used on the occasion was, to use the language of the witnesses, "rotten, used up and burned out," it having been used for a long time. So that when the case is carefully examined it will be found that there was proof for the jury tending to establish the fact that the master had failed in the performance of his duty to the deceased, and, therefore, it would have been error on the part of the trial judge to take the case from the jury.
The perusal of this case will show how frequently human life is sacrificed for want of a little care and foresight and, possibly, a little extra expense. The proof tends to show that there were at least three methods of thawing out dynamite. The safest and most simple method in general use, suggested by the evidence, was to bury the dynamite in a heap of manure and pour hot water on it once. The heat and moisture would then extract the frost and render the explosive fit to handle and use. Instead of doing that the master in this case improvised what is called a sheet-iron furnace, old, rotten and broken, without either top or bottom. Then placing the dynamite in a pail inside and kindling a fire outside the furnace, with apparently nothing to keep the excessive heat and flames from the dynamite, with such a plan of doing such dangerous work an explosion was almost certain to occur. It does not, I think, require an expert to see that if the plan of burying the dynamite in a heap of manure had been adopted *Page 406 this accident would not have occurred. Possibly it might have been a slower and more expensive process, though it is difficult to see why. The duty is cast upon the master to use his superior intelligence and ability to devise ways and means, so far as he reasonably can, to protect his servants against hidden dangers that lurk in the employment.
There does not seem to be any other question in this case that calls for notice and so the order of the Appellate Division should be reversed, with costs in all courts, and the judgment of the trial court affirmed.