95 N.Y.S. 1020 | N.Y. App. Div. | 1905
The action is for personal injuries. The plaintiff at the time his injuries were received Was one of a gang of men in the employ of the defendant unloading cars of coal, shoveling the coal from open cars down into pockets underneath.. In the center were two doors, which form part of the bottom of the car and when open permit the coal to run out through the opening, about five feet in length by four in width. The doors are fastened when closed by chains wound around a shaft and opened by unwinding the chains. As stated by a witness, “ to open those doors we unwind the dog; there is a dog on the outside — what we call a dog ; a catch that snaps on a little wheel. We unsnap that catch and unwind the car.” The car on which the accident occurred was a twenty-five ton car of rice
The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The act provides (§ 2) that no recovery for injuries under this act shall be maintained, unless notice of the time, place and cause of the injury shall be given to the employer. The following is the notice served: _
“ Take notice that the undersigned, Henry Miller, was injured on or about the Wth day of January, 1904, in the. yard of the Solvay Process Company at Solvay, N. Y., at the time being an employee Of the said Solvay Process Company.
. “ This claimant -was injured by reason of the negligence and carelessness of the defendant, its agents, servants and employees, through ..their in competency in' not providing competent servants in the work of unloáding its coal from cars, and in not stationing guards or persons to Warn claimants of danger and in failing to properly protect -its employees while engaged in- the performance of their various duties.
“Notice is given that this claim,* unless this matter is adjusted, will bring an action against the Solvay Process Company to recover damages for injury .under chapter 6Ó0 of the Laws of 1902 and the several’ acts amending the same, and this notice is served upon you in accordance therewith.
“ Dated March 14th, 1904.
“ HENRY MILLER, Claimant.”
There was no evidence whatever given upon the trial of any incompetency of defendant’s agents in providing servants to do the work of unloading coal from the cars. ¡Nor was there any evidence given upon the subject of stationing guards dr persons to warn claimants or employees of danger, or upon the subject of protecting them while engaged in the performance of their various duties. In respect of its applicability to the injury actually sustained the notice is wholly defective.
The evidence does not bring the case within the provisions of the act in other respects required to create liability. The plaintiff was not injured by reason of the negligence of. any person in the service of the defendant intrusted with or exercising superintendence. Flint, by whose negligence the injury is said to have ■occurred, was a mere foreman,, and a coemployee with the plaintiff. Furthermore, no' negligence whatever on the part of Flint was shown. He was called as a witness by the plaintiff, and the only one who gave testimony on the subject of his duties as foreman, and of his act for which negligence is claimed. He says': “ I had four men in my charge * * * unloading coal and shoveling out the cars. * * * My duties are to run the coal in there, to see that they have got coal enough for the caustic each day and' night, and check off the cars that come there on the ticket, and to see that my
Miller says: “ I went up in the car; after I got up there w.e put that bar in aiid then 1 and another fellow was hammering away and all at- onóe the whole thing went and' I went over head —I went head first on the bar, across on my chest.” " '
Ho one, not even the plaintiff, in his testimony characterized the act of Flint as negligent. The plaintiff attributed, the caüsé of tlie accident to the act of St. John, in the.manner in which,- on this occasion, he unwound the chain. If ,thé injury to the plaintiff was caused by the negligent .act off any eniployee of the defendant, it was that of St. John, a coemployee.
Our conclusion is that, both upon ■ the ground- of the defective notice and that the act of negligence claimed. was not that of a person in' the service of the defendant intrusted with and.exercising superintendence within the meaning of the statute, the • plaintiff, should have been nonsuited. ■ ■ .
The judgment and order should be reversed , and a new ■ trial
All concurred; Spring, J., in result only.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.
Sic.