123 N.Y.S. 959 | N.Y. App. Div. | 1910
Plaintiff was employed by defendant -to work upon a machine intended to drill holes in metal swivels. He had eleven years’ experience in the use of similar machines. Defendant’s machine consisted of an upright column, from which an arm extended at ’right angles at a height of about four and a half feet from the floor. At the extremity of this arm were three cogwheels which turned the drill. These cogwheels were covered in the rear but uncovered in the front. The fact that they were thus'unguarded and that injury would result to him if his hands were caught in-them was known to plaintiff from the first day that he was employed upon the machine. While engaged in drilling a swivel he heard a ' noise and bent down to see what the matter was, and while doing that his foot slipped and his left hand came in contact with .the cogwheels and his hand was injured. There is no evidence of any defect in.the machine unless the absence, of guards oyer the cogwheels should be deemed such. There is no evidence of any defective or slippery condition of the floor. The,cause Of plaintiff’s slipping is left wholly to conjecture.
But it is urged as a further objection to the notice that it'does . attempt to state the negligent violation of the master’s duties, and. that it states several independent and inconsistent violations thereof and that the notice is, therefore, insufficient. (Finnigan v. N. Y. Contracting Co., 194 N. Y. 244.) As it- seems t.o us, the most serious.-difficulty with the notice" in the Finnigan case is that it; wholly failed to state any-physical cause of the injury, or, to quote; the language .of Judge-Hisqo.ok"!- “ There was no statement which fairly--and-completely; described the cause of the accident-which killed plaintiff’s intestate- as disclosed by the facts.” - As was -said: by Mr.-Justice 'Ingraham,-- when- the cáse was before this court (122 App. Div. 712): “ From this notice the defendant could gain no information as to whether the deceased was injured by -a blast, the breaking of a derrick, by falling, into a pit or failure to provide safe machinery; nothing was stated except that his death was caused by the negligence of the defendant.” It would perhaps be difficult; in this case to refer the physical, cause-:which -was stated: to-more than-one violation of ■ the master’s duty, the failure to preperly-guardthe machine. When the notice attempts to- state' the -negligent
For this reason, therefore, we conclude that the judgment appealed from should be affirmed, with costs.
Present — Woodward, Jenks, Burr, Rich and Carr, JJ.
Judgment unanimously affirmed, with costs.