Simpson v. Foundation Co.

Woodward, J.:

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 LTew 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 night time 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 tó warn plaintiff of the approach of said apparatus or any of its parts; failed to supply sufficient electric lights or any other kind of light in the night time 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 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 Employers’ Liability Act, 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 of the Laws of 1902, there is no allegation of a single fact to bring the case within the provisions of the Employers’ 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 of the Laws of 1902, as we distinctly held in the case of Rosin v. Lidgerwood Manufacturing Co. (89 App. Div. 245), and this doctrine was specially approved by the Court of Appeals in. Gmaehle v. Rosenberg (178 N. Y. 147, 152). It is true that in the case of Harris v. Baltimore Machine & Elevator Co. (112 App. Div. 389) Mr. Justice Gaynor, with his usual accuracy of distinction in matters of 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 — that this was a mere matter of proof — but the Court of Appeals in affirming that decision say (188 N. Y. 141, 144): “ It is not necessary, in order to plead a cause of action under the Employers’ 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 6.00 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 App. Div. 437). this court,” say the court in Curran v. Manhattan Railway Co. (118 App. Div. 347, 349), “ made the observation that as it then construed the Employers’ 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 employee against his employer, whether under the act or at common law. Further consideration has led us to conclude that in order to entitle an employee to the benefit of the provisions of the Employers’ Liability Act he must; bring his action under that act and conform to its terms in so doing (Chisholm v. Manhattan Railway Co., supra),* 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 to take notice that Patrick Simpson claims and demands from the Foundation Company fifty thousand dollars for damages sustained !by said Simpson as a result of personal injuries caused by the negligence of the Foundation Company on June 27th, 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 Mew York, and the said Patrick Simpson intends to bring action therefor.” 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 tip a common-law cause of action for negligence, and it has no more place in' the record in this case than has the Declaration of Independence.

It may be assumed, without discussion, that in pleading a cause of action under the Employers’ Liability Act it is not necessary to allege that the negligence is that of the master by his superintendent ; that it is sufficient to allege the master’s negligence, and to sustain the allegation by showing that it was done or omitted by one discharging the duties of a superintendent; but a very different proposition is presented in reference to the notice which is required by the statute. The purpose of that notice is to inform the master that an accident has occurred for which he is liable under this statute, as no notice is required under the common law. The employee is given an enlarged right of action against the master for the negligent act of a superintendent, or for defects in the works, ways or machinery, and this enlarged right is given on condition that the employee, within 120 days of the accident, shall give the employer notice, not generally, but specifically, of an act of omission or commission on the part of a superintendent, or of a defect in the works, ways or machinery. A general notice of negligence such as might be entirely proper in a complaint, is not notice to the master that an accident has occurred for which he is specially liable; the master, in good faith and fair dealing, if he is to be subjected to a special liability, has a right to be informed of the basis of such special liability; has a right to a notice calling his attention to the fact that the accident was due to the negligence of one discharging the duties of a superintendent, or that it was due to a defect in the works, ways and machinery, to the end that he may investigate the particular facts which are to be relied upon in the action, preserve his evidence, and take such steps as his own interests shall dictate. The enlarged right of action is coupled with a duty on the part of the employee, and there is no hardship in requiring that this condition shall be performed. If the action is one at common law there is no need of a notice, and a weak cause of action, or a doubtful one, at common law, is not entitled to be bolstered up by a reference to the Employers’ Liability Act. It might be that where a notice had been served in good faith, and had been admitted in evidence, and the facts showed purely a common-law action, a charge on the part of the court that the notice had no bearing on the case would cure the error; but to permit the evidence to go in over objection, where the notice itself failed to show any liability under the statute and then to read the statute and to tell the- jury that they must apply this statutory law to a. common-law liability, is to give to the plaintiff an advantage which was not contemplated by .the act and to which in justice lie is not entitled.

With this notice in evidence over the defendant’s objection and exception, tlie learned trial justice, in charging the jury, read subdivision 1 of section 1 and section 3 of the Employers’ Liability Act to the jury, and charged them that “ This action is brought under this act, and this law applies to the evidencedn this case, and you must apply this law to the evidence.” This portion of the charge was duly excepted to, counsel specifically objecting; to the reading of the act, on the ground that it had no ¡application to the issues framed, and asked the court to charge that “ there is no evidence in this case to warrant a finding that there was any defect in the ways, works or machinery furnished by the defendant which in any way contributed to this accident.” This was refused, and defendant took an exception.

This was clearly error. The notice, as we have seen, had no place in the case, and the law is clear that the provisions of chapter 600 of the Laws of 1902 have no bearing whatever upon a com mon-law cause of action. . It was error, therefore, for the court to charge the jury that they must apply this law to the evidence in this case. (See, generally, upon the question, Finnigan v. New York Contracting Co., 122 App. Div. 712 ; Barry v. Derby Desk Co., 121 id. 810, much in point; Chisholm, v. Manhattan R. Co., 116 id. 320; Kennedy v. New York Telephone Co., 125 id. 846, 849, and authorities there cited Mahoney v. Cayuga Lake Cement Co., 126 id. 164; Palmieri v. Pearson & Son, Inc., 128 id. 231, 232, and authorities there cited.)

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Jenks, J., concurred with Miller, J.; Gaynor, J., read for affirmance, with whom Rich, J., concurred.

Miller, J.:

I think this judgment should be reversed because the case was submitted to the jury on an erroneous theory. In charging the jury the court stated the claims of the parties substantially as pleaded, made some general observations, read sections 1 and 3 of the Employers’ Liability Áct, saying: “ This action is brought under this act, and this law applies to the evidence in this case, and yon must apply this law to the evidence,” referred to the master’s duty to furnish a safe place and suitable appliances and materials, and to the rule of assumption of risk,, and then submitted the following questions to the jury: (1) Did the defendant provide a safe place and exercise proper care to keep it safe ? (2) Under all the circumstances of the case was there any negligence on the part of the master 1 (3) Did the plaintiff contribute to the happening of the accident ? (4) Did the plaintiff assume the risks of his employment ? The defendant specifically excepted to the court’s charge respecting the application of section 1 of the Employers’ Liability Act and the master’s duty to furnish a safe place, and to the refusal of the court to charge that there was no evidence to warrant a finding that there was any defect in the ways, works or machinery.

Neither the rule of safe place nor section 1 of the Employers’ Liability Act applies to this case. The master was' liable, not for a defect in the ways, works or machinery, nor for the failure to furnish a safe place in which to work, but, if at all, for not furnishing a signalman. The evidence respecting the light, the absence of bell or other signal, and the' obstructions, of the engineer’s view only relate to the defendant’s duty to furnish a signalman and to the question of the plaintiff’s contributory negligence. The defendant’s evidence tends strongly to show that the engineer had a plain view of the men on the platform, and that the signalmen, referred to by the plaintiff’s witnesses as present on prior occasions, were there to give warning of the movement of another. machine at a different place. The question upon which the verdict should have turned, i. e., whether the engineer had an unobstructed view of the men on the platform, was not suggested by the court to the jury, except in response to a request to charge. Tn substance, the jury were instructed to apply the Employers’ Liability Act to the case and to say whether the defendant had furnished a safe place, and whether, under all the-circumstances in the case, it was guilty of any negligence. A layman might easily conclude that the platform was unsafe from the mere fact that the plaintiff was knocked from it by the derrick. It is true that the failure to furnish a signalman was stated by the court as among the claims of the plaintiff, but that was far from stating the precise question for the jury to decide, and the only questions actually submitted were the general ones, as above stated.

A charge confined to a statement of abstract, general principles, even if applicable to the case, is more likely to confuse than to aid the jury, arid certainly the submission to them of abstract questions, not in the case, may be presumed to have been harmful. The jury can be expected to decide intelligently only when the precise point to be decided is concretely stated to them. If the main charge fails to instruct them, requests to charge are apt to be futile. A ver-. diet on a sharply contested issue of fact should not be permitted to stand where the charge is confined to abstract, general principles, especially as here, if they have no application to the case and are excepted to.

I think the learned counsel for the appellant sufficiently -raised the point. His brief called attention to the exceptions with folio references to the record. He argued that the Employers’ Liability Act had no application to the case; but, by contending for more than we are deciding, he did not lose the benefit of the proposition which the majority of us agree to, to wit, that section 1 of the Employers’ Liability Act does not apply.

Jenks, J., concurred.

* 116 App. Div. 320. — [Rep.