Tlié action, is-brought by an employee to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant, his employer. The case was submitted to the jury upon the theory that the action was brought under the Employers’ Liability Act, so called (Laws of '1902^ chap. 600). We are of opinion that the judgment is erroneous for three reasons : (1) That, considered - as an action under the Employers’ Liability Act the notice given to the defendant .was insufficient; (2) that the facts did not bring the case within' the Employers’. Liability'Act, and (3) that no cause of action at common law was established.
■ Section 2 of the Employers’ Liability Act provides, among other things, that “Mo action for recovery ofi compensation for injury or death under this act shall be maintained unless notice of the time, place and. cause of the injury -is given to the employer within one-hundred and twenty days and the action is commenced within. one *61year after the occurrence of the accident causing the injury or death,” and that the notice, shall be in writing. The only notice given to the defendant was a letter addressed to it under date of September 30, 1903, signed by the plaintiff by his attorneys, as follows:
“ Gentlemen.— Take notice that on the 22nd day of July, 1903, Joseph Ortolano, while in your employ, sustained severe injuries to his person, including a severe cut on the left hand, while working at or near the corner of 42nd Street and Madison Avenue, New York City, Borough of Manhattan, which he claims resulted from your negligence in not providing .a proper and suitable place for him to work.”
It will be’ observed that this notice does not in express terms show - that the claim was made under the Employers’ Liability Act, .nor- is it stated that the injuries were caused through a negligent defect “in the condition of the ways, works or machinery connected with or used in the business of the employer,” or through “ the negligence •' of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of. such superintendent, of any person acting as superintendent with the authority or consent of such employer,” which coristittite the elements of a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600, § 1). This notice at most indicates a claim made under the common law, and while it was not essential to the plaintiff’s right to sue on a common-law liability that he should serve a notice of claim, yet it must be regarded as now well settled that a notice to constitute the basis for an action under the Employers’ Liability Act must fairly apprise the employer that the claim is made under the statute and point out the negligence from which the in jury arose. (Chisholm v. Manhattan Railway Co., 116 App. Div. 320; Miller v. Solvay Process Co., 109 id. 135; Hughes v. Russell, 104 id. 144.) The notice in question gave the defendant no information with respect to the manner in which the plaintiff sustained injury. It does not even point out what came in contact with the plaintiff’s hand, or show whether something was thrown against it or fell upon it or whether the injury was self-inflicted by the plaintiff in an effort to protect himself from danger incident to being employed in an unsafe place. *62lío evidence was given tending to show that there was no intention to mislead the defendant by the notice or that the defendant was not misled thereby to save the notice under the 2d section of the : statute. The learned trial court read the material provisions of the Employers’ Liability Act'to the jury and left.it to the jury to, decide whether or not the defendant was liable thereunder, and presumably the verdict is based upon the theory that the statute was violated.
The defendant was engaged, in building a section of the underground railway known as the subway in Forty-second street near Madison avenue. A tunnel in which to operate the trains had'been constructed some distance below the surface of the street.. The .fact does not clearly appear, but it is fairly to be inferred from the' record that the excavation for the subway tunnel in Forty-second-street was made in part by an open cut and that, the street railway tracks in the street,' including the cement surface between and adjacent to the rails, were -supported by caps, extending .at- right angles under the tracks, placed about ten feet apart, resting upon .posts and by planking between' the. caps* running longitudinally with the tracks, apparently resting upon the caps, forming “ a solid .sheathing under the track.”’ After completing the roof of the tunnel it became necessary to jack uj!> the car tracks to the level of the sidewalks, and to do that it was necessary to remove the sheathing. At the time of the accident the plaintiff and fellow-workmen were engaged by' direction Of their foreman in- putting hydraulic jacks in place to jack up tile, tracks at a point in' Forty-second street, between Madison and Fifth avenues where the roof of the tunnel was* according to the testimony of the plaintiff, some six or seven, feet below'the ground* and according to -the testimony of other witnesses a greater distance.
The plaintiff had been employed doing similar, work and in assisting in putting in the supports for the street railway tracks for a period- of eight or. nine months, and the work of jacking up the tracks at the time of the accident was being conducted in the same manner- as it had been done theretofore. The plaintiff testified: “ While We were putting those jacks in, one fell down and the Ceiling on top of us; the ceiling fell down-, knocking me down ; I fell on the ground. This ceiling was ‘composed of' s.tones, everything; *63concrete. This whole mass of concrete and stone fell on me and threw me to the ground.” The injury to the plaintiff consisted of a cut in the palm of his left hand, which was struck by some falling material, and other lesser injuries evidently sustained by falling, upon being thus struck. The foreman had charge of fifteen men, divided up into three or four gangs. One of. the workingmen engaged in the gang with plaintiff testified that while they wrere lifting the track “ a car passed and concrete and earth fell on top of us,, stones and everything,” and that one of the stones cut plaintiff’s hand. Another employee, -working with the plaintiff, testified that plaintiff had his hand extended at the time, and that it was struck by concrete. The hydraulic jacks were not described. It appears that they were placed under the track between the caps or cross beams, but it does not appear whether the power was exerted against the ties or the cement or otherwise, nor was it shown how the tracks were held in place when jacked to the proper height. The engineer in charge of the work testified that the tracks could not be jacked up without removing the sheathing, and that the same method was adopted throughout the work, “ except where a particular situation^ an irregular situation was encountered, then shoring had to be .attempted to meet the new situation. , In general, it was the same all the way through.” It was not shown that either a “ particular ” or “ irregular ” situation was encountered where plaintiff met with the injuries. It appears from the testimony of the plaintiff’s working partner that the men themselves removed • the sheathing before inserting the jacks, and that they were instructed by the foreman to get boards enough, timber and braces, to protect themselves, and that if they did not, it would be their own fault; that “in raising, these hydraulic jacks to move the timber, this piece of dirt or ceiling came down — I don’t know where it came from:—it might have come through the hole — from the running of the Metropolitan plows — and must have hit him on the hand; it might have been the Metropolitan plows on the car that turned it down there; I cannot say where it ca.._ie from. A car passed at that time and shook the. structure. * * ‘* Something fell; I know what caused it to fall. The shaking of those cars crossing over 42d Street going south on Madison Avenue; the plow shook this stuff down; the Metropolitan cars; the plow of the car. Where the plow *64was it was all the' time opfcn. The concrete or other portion of the ceiling was all protected, from falling' on.' the side of the' trolley. tracks, yet there was some substance, fell oil him. This stuff could come down, being in the trolley slot, between the .trolley tracks where the slot runs; that could drop1' that down and do -a whole lot of damage; \ there ' is four or five inches of space' for the plow to run in. * * T saw the material after it was on the .ground after it struck' Ortolano. I examined it. It was a piece of dirt; a small- piece of. dirt ■; a piece of concréte mixed with it, like a small stone) you might say a pound or a pound and a half, the piece that came dow.m * * * I say a small piece of dirt hit him, about a pound and a half. . * * '* That is my belief -that the only thing that hit .this man was something that carpe down through the plow' slot, that a trolley car going south on Madison Avenue, crossing over 42d Street, dropped this piece through the slot. It weighed a pound and a half, The slot is four inches wide.”
This is the only material evidence relating to the manner in which the accident occurred, or its cause. There is no evidence of any observation, or inspection after-the accident, to determine where .the material which fell came’from, of as to the appearance of the under 'surface above the men when they removed, the sheathing to enable them, to set the- jacks in place. These facts' do not bring the case within the Employers’ Liability jkct,.nor do" they make out a prima facie case of liability for negligence at common law. There was no defect in the condition of any of the ways, works or 'machinery fur- ' nished by the defendant or used in its business, and there is no evidence of negligence of any one in the service of the defendant intrusted with and exercising superintendence, whose'sole or principal duty was that of. superintendence, or of any one' acting as superintendent. Wliat caused the material to fall was not shown. Tfy as indicated by some, of the: testimony, the material came from the slot for the trolley 'plow, of course the defendant would not be liable, unless at least by proper inspection it should have discovered the danger, of which there is no evidence. The only theory upon which the defendant could be liable, would be that the under surface of the railroad .‘tracks Was in a dangerous and unsafe condition, and that this Was known to the defendant, or should have been discovered in the .exercise of reasonable care, and there is no evidence to sustain either *65proposition. The inference clearly is that if the place was unsafe it was made so by the plaintiff and his fellow-workmen. It appears that part of their work consisted inputting in the braces and sheathing, and if in removing the' sheathing they discovered anything, in the condition of the under- surface of the street under which they were to work that would render it dangerous, they apparently had the material at hand with which to protect' themselves, and were directed to do so by the foreman, who was not present at the time. It may be that, in putting one of the jacks in place, the plaintiff and his fellow-workmen disturbed the surface above and precipitated the material upon themselves. In these-circumstances, we think the court also erred in refusing to instruct the jury, as requested by counsel for the defendant, that if the plaintiff’s injuries were received through the negligence of a fellow-servant, there could be no recovery.' The jurors may have been of the opinion, as we are, that there was no negligence on the part of the defendant, but that one of plaintiff’s fellow-employees was guilty of negligence,' and upon that theoi-y have rendered the verdict. The court also erred in instructing the jury as matter of law “that the plaintiff did not take upon himself the risks of an unsafe place in which to work,” and that the only risks he assumed were those “ incident to the work he had to do after the place in which he was to do that work was made safe or reasonably safe.” The only risks which an employee now assumes, as matter of law, are those to which the learned court referred in these instructions to the jury (Employers’ Liability Act, § 3), but the learned court overlooked the other, provision of the Employers’ Liability Act, which is somewhat obscure, but has been construed as meaning that whether or not the employee assumed other risks is a question of fact to be determined by the jury. (Kiernan v. Eidlitz, 115 App. Div. 141; Cadigan v. Glens Falls Gas & Electric Light Co., 112 id. 754.)
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. .
Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.
Determination reversed, new trial ordered, costs to appellant to abide event.