Heilig v. Burns

Kruse, J.

(dissenting):

The plaintiff in his notice states that the injuries_resulted from the throwing or suffering to be thrown or falling of a heavy timber through the roof of the shed where he was required to work, ■ giving the time and placb and minutely describing the timber which struck him. I think it is. a sufficient statement to comply with the Employers’ Liability Act, especially in view of the undisputed fact that the defendant Was fully informed as to the precise nature of the accident and was not misled.

Rut. even if the notice is not sufficient I think the verdict should be upheld. It appears that the injured person was put at work immediately underneath where these ties were being moved. The ties were put on á so-called, dolly, consisting of a single roller and hauled up an ' inclined pásSageway but sixteen inches wide, being. guided and moved with cantliooks.. There was ice and snow on the roller.and the passageway as well as the ties. I think the evidence shows that it was not merely the slipping of the cantliooks which caused- the accident,, but the slipping of the tie, and very likely if the men had held on, one or more of them would have been precipitated to the ground with the' tie.

It requires no extended argument, it seems to me, to show that *775•such a practice is dangerous, and the jury could well find that the defendant was not reasonably careful or regardful of the safety of the plaintiff; that it exposed him ■ to unnecessary peril. He was not warned and did not know the danger to which lie was exposed. I think it was not necessary to serve any notice, as the facts alleged in the complaint and the evidence given upon the trial establish actionable negligence against the defendant, without the aid of the statute, and the allegations regarding the notice may be entirely disregarded as surplusage.

I vote for affirmance.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.