104 N.Y.S. 1064 | N.Y. App. Div. | 1907
Tlié action, is-brought by an employee to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant, his employer. The case was submitted to the jury upon the theory that the action was brought under the Employers’ Liability Act, so called (Laws of '1902^ chap. 600). We are of opinion that the judgment is erroneous for three reasons : (1) That, considered - as an action under the Employers’ Liability Act the notice given to the defendant .was insufficient; (2) that the facts did not bring the case within' the Employers’. Liability'Act, and (3) that no cause of action at common law was established.
■ Section 2 of the Employers’ Liability Act provides, among other things, that “Mo action for recovery ofi compensation for injury or death under this act shall be maintained unless notice of the time, place and. cause of the injury -is given to the employer within one-hundred and twenty days and the action is commenced within. one
“ Gentlemen.— Take notice that on the 22nd day of July, 1903, Joseph Ortolano, while in your employ, sustained severe injuries to his person, including a severe cut on the left hand, while working at or near the corner of 42nd Street and Madison Avenue, New York City, Borough of Manhattan, which he claims resulted from your negligence in not providing .a proper and suitable place for him to work.”
It will be’ observed that this notice does not in express terms show - that the claim was made under the Employers’ Liability Act, .nor- is it stated that the injuries were caused through a negligent defect “in the condition of the ways, works or machinery connected with or used in the business of the employer,” or through “ the negligence •' of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of. such superintendent, of any person acting as superintendent with the authority or consent of such employer,” which coristittite the elements of a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600, § 1). This notice at most indicates a claim made under the common law, and while it was not essential to the plaintiff’s right to sue on a common-law liability that he should serve a notice of claim, yet it must be regarded as now well settled that a notice to constitute the basis for an action under the Employers’ Liability Act must fairly apprise the employer that the claim is made under the statute and point out the negligence from which the in jury arose. (Chisholm v. Manhattan Railway Co., 116 App. Div. 320; Miller v. Solvay Process Co., 109 id. 135; Hughes v. Russell, 104 id. 144.) The notice in question gave the defendant no information with respect to the manner in which the plaintiff sustained injury. It does not even point out what came in contact with the plaintiff’s hand, or show whether something was thrown against it or fell upon it or whether the injury was self-inflicted by the plaintiff in an effort to protect himself from danger incident to being employed in an unsafe place.
The defendant was engaged, in building a section of the underground railway known as the subway in Forty-second street near Madison avenue. A tunnel in which to operate the trains had'been constructed some distance below the surface of the street.. The .fact does not clearly appear, but it is fairly to be inferred from the' record that the excavation for the subway tunnel in Forty-second-street was made in part by an open cut and that, the street railway tracks in the street,' including the cement surface between and adjacent to the rails, were -supported by caps, extending .at- right angles under the tracks, placed about ten feet apart, resting upon .posts and by planking between' the. caps* running longitudinally with the tracks, apparently resting upon the caps, forming “ a solid .sheathing under the track.”’ After completing the roof of the tunnel it became necessary to jack uj!> the car tracks to the level of the sidewalks, and to do that it was necessary to remove the sheathing. At the time of the accident the plaintiff and fellow-workmen were engaged by' direction Of their foreman in- putting hydraulic jacks in place to jack up tile, tracks at a point in' Forty-second street, between Madison and Fifth avenues where the roof of the tunnel was* according to the testimony of the plaintiff, some six or seven, feet below'the ground* and according to -the testimony of other witnesses a greater distance.
The plaintiff had been employed doing similar, work and in assisting in putting in the supports for the street railway tracks for a period- of eight or. nine months, and the work of jacking up the tracks at the time of the accident was being conducted in the same manner- as it had been done theretofore. The plaintiff testified: “ While We were putting those jacks in, one fell down and the Ceiling on top of us; the ceiling fell down-, knocking me down ; I fell on the ground. This ceiling was ‘composed of' s.tones, everything;
This is the only material evidence relating to the manner in which the accident occurred, or its cause. There is no evidence of any observation, or inspection after-the accident, to determine where .the material which fell came’from, of as to the appearance of the under 'surface above the men when they removed, the sheathing to enable them, to set the- jacks in place. These facts' do not bring the case within the Employers’ Liability jkct,.nor do" they make out a prima facie case of liability for negligence at common law. There was no defect in the condition of any of the ways, works or 'machinery fur- ' nished by the defendant or used in its business, and there is no evidence of negligence of any one in the service of the defendant intrusted with and exercising superintendence, whose'sole or principal duty was that of. superintendence, or of any one' acting as superintendent. Wliat caused the material to fall was not shown. Tfy as indicated by some, of the: testimony, the material came from the slot for the trolley 'plow, of course the defendant would not be liable, unless at least by proper inspection it should have discovered the danger, of which there is no evidence. The only theory upon which the defendant could be liable, would be that the under surface of the railroad .‘tracks Was in a dangerous and unsafe condition, and that this Was known to the defendant, or should have been discovered in the .exercise of reasonable care, and there is no evidence to sustain either
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. .
Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.
Determination reversed, new trial ordered, costs to appellant to abide event.