119 N.Y.S. 430 | N.Y. App. Div. | 1909
I entertain some doubt whether the notice referred to in the foregoing statement of facts was ever mailed to the defendants, but none of the reasons urged against the judgment appear to me sufficient to justify reversal. I shall consider them in order.
(1) The notice was sufficient “ notice of the time, place and cause of the injury.” It is not disputed that time and place were correctly stated, and there can be little more doubt that the. cause of the injury was accurately stated. The plaintiff’s leg was broken by an iron column falling upon it. The “ cause of the injury ” was the fall of the column upon the leg. The notice stated that the columns were placed one on top of the other, and that the top one
(2) The statute provides: “ The notice may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post.” In view of the plain language of the statute, I do
(3) It was not error to submit the question to the jury whether Fiske was acting as superintendent in the absence of Craig. I think that the evidence justifies the finding that Fiske was a person “ entrusted with and exercising superintendence whose sole or principal duty is that of superintendence,” regardless of the absence of Craig. The appellants rely upon Abrahamson v. General Supply & Construction Co. (112 App. Div. 318). In that case, as here, the person whose negligence was relied upon by the plaintiff as furnishing ground for recovery was a “ pusher ” in charge of a gang of ironworkers; but it appeared in that case that the “ pusher ” was employed to do and was engaged in manual labor the same as the others. His principal, duty was manual labor. His leadership or superintendence was but incidental. In this case the evidence of the defendants shows that Fiske was employed to direct the men. That was his sole and principal duty. The mere fact that of his own volition he occasionally lent a hand to hasten the work does not change the case. (Prendible v. Connecticut River Manuf. Co., 160 Mass. 131; Crowley v. Cutting 165 id. 436; Reynolds v. Barnard, 168 id. 226.) Fiske was entrusted with and exercising superintendence as plainly as was Morris in Faith v. N. Y. C. & H. R. R. R. Co. (109 App. Div. 222; affd., 185 N. Y. 556), or Sapp in Carlson v. United Engineering & Contracting Co. (113 App. Div. 371), or Illman in Mikos v. N. Y. C. & H. R. R. R. Co. (118 id. 536). The statute does not require that the person for whose negligence the master is made responsible shall be a general superintendent, but only that he shall be a person “ entrusted with and exercising superintendence whose sole or principal duty is that of superintendence.” Mo matter how limited his authority maybe,if he comes within that definition the master is liable for his negligence. The draftsman of that statute understood that a superintendent or one exercising superintendence might have general or limited authority, for by section 3 the employee is required to
(4) I do not think the exception to the charge respecting the assumption of risk sufficient to present the point argued by the appellants. It is obvious from the portion of the charge quoted in the above statement of facts, and from its context, that the court had reference to the inherent, necessary risks which the servant is conclusively presumed to have assumed. The language of the statute on that subject is: “ An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this act takes effect be considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees.” There is 'a plain distinction between necessary risks, i. e., those risks arising after the master has performed his duty, and obvious risks, i. e., those which may be due to the master’s failure to perform his duty. It may be that some confusion of thought has resulted from not carefully distinguishing between the two kinds of risks, and that it were better to omit any reference to the assumption of necessary risk, because the
In view of the age of the plaintiff, his earning capacity, and the very serious injury plainly due to the accident, we cannot say that the verdict was too large.
The judgment is affirmed.
Present — Hirschberg, P. J., Jenks, Burr, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.