Beadle v. Holbrook, Cabot & Rollins Corp.

164 A.D. 464, 150 N.Y.S. 203, 1914 N.Y. App. Div. LEXIS 8468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1914
• Status: Published

Opinion

Thomas, J.:

If the notice is sufficient, the jury was justified by the evidence in finding that the Polish servant was coerced by the peremptory order of the foreman to dump the barrow on the already loaded car, and that the order was so negligent as to inculpate the master. The notice was served before the action was begun. The statute contemplates the service of the notice within a time so proximate to the accident as to enable the master to investigate, and use the knowledge acquired for the purpose of defense or settlement, but it does not provide for such interval intermediate the service of the notice and summons as would enable the master to make and to act upon such inquiry. The court submitted to the jury the command of the foreman to dump the barrow and whether he was negligent in so doing without warning plaintiff of the order of seeing to it that it was safe to follow the order. I find nothing in the notice that suggests such cause of the injury. The negligence of the superintendent and foreman is particularized, and while, the notice refers to failure to warn, the reference is not to any fact or circumstance that covers the foreman’s order, but to general failure to protect against falling material. In the notice, complaint or bill of particulars there is nothing specifically apprising the defendant of the issue submitted to the jury, and the notice does not include it

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.