The action was for damages for negligence. The defendant was engaged in sinking deep caissons for the foundations of a large building in lower Manhattan. The plaintiff was foreman of a gang of 8 men engaged in the work. The accident to him happened about midnight. The work was being done by electric light. There is evidence that the light was dim at the place where the plaintiff, was-hurt, and to the contrary. The excavation was 30 feet deep. In it was a platform 15 feet square, and 25 feet above the bottom, supported by upright timbers. In the centre of it was a chuté or hopper 2 feet square, which fed a concrete mixer under the- platform. On it were a barrel of water and a quantity of cement. Alongside of this platform,-but 7 feet higher, and by the side of the street, was another platform. On it was a derrick *383and a small engine to run it. Sand and crushed stone were dumped to the bottom of the excavation from the street. From the arm of the derrick swung a bucket from a block and fall. The engineer would by means of his engine, raise the bucket, swing it free of the said hopper platform, and lower it to the bottom of the excavation. There 6 men of the plaintiff’s gang would fill it with sand and crushed stone, whereupon the engineer would raise it to the said platform and swing it in by the derrick arm to the hopper, where the other 2 men of the gang would add water and cement and dump it into the hopper; and this process went on continually. The plaintiff came up from the bottom of the excavation to the said hopper platform by the ladder in supervising the work, and while he was at the edge of the platform calling down directions to the men below, the engineer swung the bucket rapidly across the platform by the derrick arm, and the bucket hit the plaintiff- and knocked him off the platform and into the pit.
The principal question of negligence on which the case was tried, and which was found against the defendant by the jury, was whether the defendant owed the duty to the plaintiff and the other men of having a signalman at the edge of the, engine platform to watch the men on the hopper platform below and direct the engineer in reference to their safety and also warn them of the approach of the bucket when necessary. There was sufficient evidence to support a' finding that up to the night of the accident there was such a signalman, who called out such directions and warnings, and that the plaintiff was not aware of his absence or that he had been dispensed with. There was also sufficient evidence to support a finding that the engineer was stationed with his engine so far in or away from the edge of the engine platform, that he could not see the hopper platform, or a large part of it, or the persons thereon, so as to look out for them in the swinging of the bucket by the derrick arm. It was therefore a fair question whether the defendant was not guilty of negligence to the plaintiff in not having a signalman (Aleckson v. Erie R. R. Co., 101 App. Div. 395). The plaintiff had to use due care in his dangerous position, but it could not be ruled by the trial court that he was as matter of law guilty of contributory negligence. The refusal to charge the request on this head was not error, for while it was in the main *384correct, it contained the erroneous proposition that if the plaintiff “ failed to observe ” “ the position of the bucket prior to the happening of the- accident ” he could not recover. That lie failed to see it was the fact.; but the question was whether, considering the lack of light, his surroundings and all, such failure was negligent. A trial Judge is not required to separate the good from the bad in requests to charge. A request containing anything bad may be properly refused. The plaintiff was allowed to testify in his introductory examination that he had a wife- and four children. It is cu'stomary to ask witnesses such questions to show who they' are and their status in the community, as that affects the credence and weight to be given to their evidence. The learned counsel for the defendant cites no decision that the practice is erroneous. If a case be one in which it is claimed the usual practice should not be followed, the reason therefor should be stated in the objection, instead of making the ordinary general objection, as was done in this case, so that the trial Judge may exercise his discretion. The engineer being called by the defendant testified that he could see the hopper platform and did not need a signalman. Having denied on cross-examination that after the accident happened he exclaimed to another person, “Don’t blame me, I had no signalman”, such person was allowed to testify that he did. This was competent, not to prove that a. signalman was necessary, but as a prior inconsistent statement affecting credibility (Hanlon v. Ehrich, 178 N. Y. 474). It was not error to refuse to charge that negligence of the defendant could .not be based on failure to use a warning bell or whistle in the absence of a signalman. The jury could have found that that way of warning would have sufficed to excuse the failure; to have a signalman. The learned-trial Judge did not touch on this head in his main charge. The matter of the sufficiency of tile light, with all of the conditions, bore on the question of the plaintiff’s contributory negligence as well as on the defendant’s negligence in having the place where; the plaintiff was dark, and the question of whether there should not therefore have been a signalman, and therefore the refusal of the court to withdraw that matter from the jury as requested by the defendant was not error. Two papers, purporting to contain statements of the accident made by two witnesses for the defendant- but not signed by them, were received in *385evidence to show prior inconsistent statements by them, their attention having been called to them while they were on the stand. That the statements were not signed was no reason to exclude them, there being testimony that they read them and declared them to be correct (Novogrucky v. Brooklyn Heights R. R. Co., 125 App. Div. 715). If any part of such a statement does not come under the head of prior inconsistency, but is foreign to the purpose for which, the paper is admissible, it has to be specifically pointed out to the trial court in order to serve as the basis of error (Gaffney v. People, 50 N. Y. 416). The notice under the Employers’ Liability Act was sufficient. It says that the plaintiff “was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit ”, and that this was caused by the failure of the defendant “ to provide proper protection ” for the plaintiff. These notices of laymen to laymen should not be judged with too much nicety. In the course of the examination of a witness, in answer to the question, “ Who did he ” (the defendant’s superintendent) “ say this gentleman, Frank V. Johnson was ? ” he said “ From the insurance company”. The learned counsel for the defendant thereupon moved for the withdrawal of a juror, on the ground that it had been revealed to the jury that the defendant was insured against accidents. LTo such thing anywhere appears in the record. But in the trial of accident cases against insured defendants the plaintiff’s counsel is not obliged to shape his course, and refrain from proper questions, so as not to reveal that the defendant is insured. The counsel for the insurance' company and its investigators see the witnesses, bring them to their offices, and the company’s office, and take their statements, and come into court openly and try the case, and yet seem to be under the strange notion, that the jurymen do not know it, and that the plaintiff’s counsel must avoid proper questions that would reveal it.
It is also urged that it was reversible error to admit in evidence the notice under the Employers’ Liability Act (cli. 600, L. 1902), and for the trial Judge to read to the jury section 3 of the said act and charge that it was applicable to the case — viz., the provision making the question whether continuance at work by the plaintiff after he discovered the danger from the neglect of the defendant *386by which he was hurt was negligence contributory to the injury, or an assumption of the risk by him, one for the jury —-for two reasons : first, because the complaint did not allege any change in the law created by the said act as applicable to the case, or;any particular fact making it applicable; and, second, because the evidence showed a liability, if any, under the common law unchanged by the said act.
As to the first, the complaint does not need to contain specific allegations of negligence, liability or benefit created by the act. ' The act changes or creates no rule of pleading. An action that comes or may come under its benefits is not what is called a statutory action. If thei plaintiff’s proofs do not bring the action under the benefits of the act' the action cannot be dismissed for that reason ; on the contrary, there may be a recovery under the common law. The plaintiff' is not obliged to bind himself down in his complaint to a case that can rest only on the provisions’ of the act. The act makes only two changes of the common law rules of negligence,, viz.: first, that the negligence of an employe whose-sole or principal duty is that of superintendence shall be the negligence of the master, instead of that of a fellow servant only; second, that the continuance of an employe at work after he discovers a risk arising from the master’s negligence shall not, as matter of law, be considered negligence or an assumption of the-risk by him, but shall be a question of fact for the jury. To get the advantage of these changes, the notice required by the act must be served within 120 days and the action begun within a year. If both of these things, were not done, then the advantages of the act cannot be taken. How, the complaint does not have to allege anything to show that his case is or may be ruled by the said two substantive changes by the statute, except that he served such notice. It is enough that it allege — and it should only allege in order to be in scientific form — -that the negligence alleged was by the defendant, leaving it to be shown by the evidence how it was his negligence, i. e., whether by his personal act or omission or by that of his superintendent, or in some other way. If by negligence of a superintendent, it is the negligence of the master ; if by that of some, fellow servant, it is riot. A proper complaint is never of negligence, of the defendant “iby” his superintendent or “by” his agent, or *387any one, but simply alleges negligence of the defendant, leaving the evidence to show whether in person or by or through another (Harris v. Baltimore Machine & Elevator Co., 112 App. Div. 389 ; Riley v. McNulty, 115 id. 650). Our minds should not be drawn away fr.om so plain a matter of pleading by inadvertent utterances to be found here and there.
As to the second, since the plaintiff recovered only on common law negligence, namely, the failure to furnish a signalman, accompanied by lack of light, the admission of the notice in evidence was, if an error, an entirely harmless one. And as under the common law the question of the negligence or assumption of risk of the plaintiff was under the facts in this case a question of fact for the jury, the charge of the learned trial Judge that the statute made it such a question of fact, was, if an error, an entirely harmless one. The law made it a question for. the jury, and whether statute or common law is unimportant. But the learned trial Judge was not in error, harmless or otherwise, in charging that the said provision of the statute was applicable to the case. It is as follows: il In an action maintained for the recovery of damages for personal injuries to an employee received after this act takes effect, owing to any cause for which the employer would otherwise be liable, the fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of, the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employee to the existence or continuance of such risks of personal injury therefrom, or as negligence contributing to such injury ”. An injured employe may give the notice, prescribed by the act and bring his action within the time limited by the act, for the sole purpose of getting the benefit of this particular change of the common law rule — if, indeed, the change is not one of general application, regardless of the giving of notice and commencing the action within the time specified by the act, as seems to be plainly intimated in Rice v. Eureka Paper Co. (174 N. Y. at p. 397). If the requirement of the notice, and that the action be brought within a year be taken out of the act — and they seem to have been an interlineation —' there is left a plain, consistent and workable act of general application. These two requirements contract and distort the act, and gave rise *388to the decisions of the courts that actions might be brought without giving the notice, and not subject to the said short limitation, but that the benefits of the act would not apply to them. The resulting confusion will continue until the said two requirements be taken out of the act and it thereby becomes one of general application.
The foregoing covers every point presented for the appellant -, but it is pointed out among us that there is an exception to a refusal of the trial Judge to charge a request of the defendant “ that there is no evidence in this case to vvarrant 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 ”. The learned counsel for the appellant has presented no such point to us orally or in his brief, and the brief for the respondent is properly confined to answering the points presented by the brief for the appellant. I am therefore unwilling to vote to reverse on the ground of such refusal, even if it appear to be an error. Counsel for the respondent has had no opportunity to discuss it. Our rule requiring the appellant’s brief to be filed in advance of the argument so that the respondent may know the grounds on which a reversal is to be asked for, and answer them,.is a very misleading one if we are to search for and reverse on errors not presented to us by counsel for appellants. There may be exceptional cases where that should be done for the sake of justice and so that wrong may not result from-neglect or ignorance, but this is not such a case. And if the point had been presented to us,, it would have to be observed that nowhere, in the complaint, the bill of particulars, by the evidence, or during the course of the trial, did the plaintiff claim that there was any defect in the “ ways, works or machinery ”, or any negligence whatever, other than that the defendant failed to furnish sufficient light, and .the said signalman, or else some warning by whistle or bell of the swinging of the bucket. That being so, the request was irrelevant, and therefore properly refused. Moreover, may not the absence of light be properly called a defect in the “ ways, works or machinery ” \ I am unwilling to vote otherwise without being first aided by argument at our bar. The phrase is a comprehensive one, new to our legal terminology, and far from being fully developed and defined. The same .observations are applicable in respect of the absence of a warning bell or whistle in *389lieu of a signalman. It is said that the request was made necessary because the learned trial Judge read section 1 as well as section 3 of the said statute, and said it was applicable. But on a reading of the whole charge it will be seen that he submitted to the jury no question of negligence except in respect of the absence of a signalman, or of a warning bell or whistle, and the lack of light. It were far better if charges always presented the precise questions of fact to be decided, instead of being mere legal essays or statements of abstract principles, but perfection is not of this world. A point was presented that the Employers’ Liability Act had no application at all to the case, but that is quite another thing. In place of pointing out the specific error being now discussed, it drew the mind away from it. It is also true that near the end of his charge, and after having stated the said questions of negligence involved, the learned trial Judge, in summarizing, stated as a question whether the defendant furnished the plaintiff a safe place to work. But this again had reference to the said lack of light, etc., and lack of light may make a place unsafe. The charge may lack precision, but We must take it as a whole. The question was, after all, whether the lack of light was a source of danger to the plaintiff, and whether you say it made his place of work an unsafe one, or express it otherwise, does not change the substance. And here, again, the point was not presented to us, and should not be considered. The learned counsel for the respondent was not called upon to argue it by counsel for the appellant, and had no reason or occasion to argue it.
This case was long and laborious, tried with marked ability by counsel, and should not be reversed except for some error presented to us.
The judgment should be affirmed.
Rich, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.