The complaint alleges facts, separately stated and numbered, constituting a cause of action for a personal injury, first, under the common law, and, second, under the Employers’ Liability Act. This is permissible. (Mulligan v. Erie R. R. Co., 99 App. Div. 499; Kleps v. Bristol Mfg. Co., 107 id. 488; Acardo v. N. Y. Contracting & Trucking Co., 116 id. 793.) The notice served, however, was insufficient, it not stating the cause of the injury. (Miller v. Solvay Process Co., 109 App. Div. 135; Barry v. Derby Desk Co., 121 id. 810; Finnigan v. N. Y. Contracting Co., 122 id. 712; Glynn v. N. Y. C. & H. R. R. R. Co., 125 id. 186; Kennedy v. N. Y. Telephone Co., Id. 846; Bovi v. Hess, 123 id. 389.) The learned justice presiding at the trial submitted to the jury the question of whether there was any intent to mislead the defendant in the notice served, and also whether the defendant was in fact misled, charging them that if they found “ that there was no intent to mislead,” and “that the defendant was not misled,” the notice was sufficient. To bring the case at bar within the rule established in Hughes v. Russell (104 App. Div. 144), that the insufficiency of such a notice might be obviated by proof, under the statute, that there was no intention to mislead, and that the party entitled to notice was not in fact misled, such proof must be found in the record, and in its absence the trial court was not justified in submitting the questions to the jury. *683The only evidence of that character in the case at bar was given by the witness Stone, defendant’s general superintendent, that there was a rule of the company requiring an investigation and report of every accident, and that immediately after the accident he did make an investigation and report. He did not see the accident, and it does not appear that he knew how it occurred, or that he had any knowledge of the true cause of the injury except through a presumption flowing from the fact that he made an investigation.
I do not think the notice in the case at bar presents merely an inaccuracy which can be overcome by proof of no intention to mislead, and that the defendant was not misled (Hughes v. Russell, supra), but rather that the case presented is within the principle decided in Finnigan v. N. Y. Contracting Co. (supra) and Glynn v. N. Y. C. & H. R. R. R. Co. (supra). There can be no question but that there must be some evidence that the defendant had actual knowledge of the true cause of the injury, and that there was no intention on the part of tlie plaintiff, in the wording of his notice, to mislead. There is no such evidence in the record before us. This error does not, however, require a reversal, as the plaintiff made out a cause of action under the 1st subdivision of his complaint, upon defendant’s common-law liability. This cause of action did not rest upon the negligence of plaintiff’s fellow-servant Stewart, who started the crane, but is predicated upon the proposition that the defendant was negligent because of its failure to discharge its legal duty and obligation to use due care in providing him with a safe place in which to do his work, and in failing to provide reasonable safeguards. The jury were charged that they could not find a verdict for the plaintiff based simply upon the fact that Stewart was careless in moving the crane, but that before such a verdict was warranted they must find from the evidence that the place furnished by the defendant to tlie plaintiff to do his work was unsafe in fact, and that the negligence of the defendant made it so.
The jury have resolved the questions in.favor of thp plaintiff, and the judgment and order must be affirmed, with costs.
Woodwaed, J., concurred.
Judgment and order unanimously affirmed, with costs.