Whether the plaintiff's action is maintainable under the statute regulating the employer's liability, or at common law, in either case, I think that there should be a reversal of the judgment dismissing the complaint and that a new trial should be ordered.
I think that the notice served by the plaintiff upon the defendant was sufficient within the requirements of the Employers' Liability Act; inasmuch as it sufficiently apprised the latter of the time, place and cause of the injury complained of. Within the rule, as stated in Smith v. Milliken Bros.,Inc. (200 N.Y. 21), if there was a lack of definiteness with regard to the place of the happening of the accident, it was not so serious as to invalidate the notice. The plaintiff stated that he was injured while in defendant's "employ at his factory * * * on the 25th day of January, 1907. That because of the greasy and slippery and defective condition of the floor around and about the machine at which he was at work, he slipped and his left hand was caught in said machine, thereby amputating three fingers and part of said hand. *Page 527 That said accident was caused by reason of your carelessness and negligence in permitting and allowing the said floor about said machine to become slippery and oily * * * also by reason of the defective condition of the ways, works and machinery connected with and used in your business and because of your failure to comply with chapter 600 of the laws of 1902." This notice was served fifteen days after the accident. It subsequently appeared by a bill of particulars and by the evidence that the machine by which he was injured was not the one at which he worked. He was, at the time, going along a passageway between machines in the same room in which he worked, when he slipped and, in an effort to save himself, thrust his hand out, and into, the unguarded gearing of a machine. The plaintiff incorrectly described the particular machine, from which he received his injury; but that could not have misled the defendant in his investigation of the occurrence. It was the defective condition of the passageway, which had been allowed to become slippery from grease and oil, in connection with the unguarded gearing, that occasioned the accident and the defendant's attention and inquiry were sufficiently excited and directed by the notice he received.
If we regard the action as enforcing a common-law liability, then, I agree that the case is controlled by our decision inFitzwater v. Warren, (206 N.Y. 355). That decision, squarely, overrules the case of Knisley v. Pratt, (148 N.Y. 372). InKnisley v. Pratt, it was held that an employeé may assume the obvious risks of the business, as well under the Factory Act as at common law. The case, in its facts, was not dissimilar to the present one and had stood as authority until the Fitzwater case. Under the Fitzwater case this court now holds that, where the employer has failed to properly guard cogs, gearing, shafting, or machinery, as required by the Labor Law, (sec. 81), the employe, who, voluntarily, entered his service, notwithstanding his knowledge of the risks *Page 528 from the former's failure to do so, does not assume them.
WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur with CHASE, J.; WERNER, J., concurs with GRAY, J.; CULLEN, Ch. J., absent.
Judgment reversed, etc.