Foster v. B. I. Crooker Co.

142 A.D. 268, 126 N.Y.S. 1020, 1911 N.Y. App. Div. LEXIS 294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1911
• Status: Published

Opinion

Spring, J.:

The action is negligence in pursuance of the Employers’ Liability Act (Laws of 1902, chap. 600; revised by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.). In June, 1908, the plaintiff was employed by the defendant Crooker Company as a carpenter in the construction of a steel building owned by the defendant Wickwire Steel Company in the town of Tonawanda. The building was over two hundred feet long and nearly fifty feet'-in width. About fifty feet from the floor on each side of the building for it's entire length was an iron girder about eighteen inches in width, and in the middle and three inches above it was a rail along which was operated a crane or cár propelled by electricity and in the immediate charge of a man in a cage fastened to one end and below the crane. The crane was owned and operated by the defendant Wickwire Steel Company, and was used to convey material, parts of engines and machinery to the northerly part of the building where the Wickwire Company was engaged in putting together an"d installing blowing machines. The girder came within six inches of the wall of the building and was about four feet below the bottom of the upper tier of windows.

The building, which had been in process of Construction for about two years, was nearly completed, and plaintiff had been employed oh it from .the commencement of the work. He and two other carpenters had been engaged for three days in putting in the sash" and windows on the upper row of windows on the east side of the building. The method of performing this work was for plaintiff and. Roberts, his fellow-workman, to measure the length and width of the window frame, noting the measurements oñ a stick which one of the men threw down to Dugan, the other carpenter who was on the floor and who fitted the windows to the size- indicated. It was then hauled up with a block and tackle to the plaintiff and Roberts, who. were standing on the girder. Each sash, with the glass, weighed about 100 pounds, and was in size five feet by four feet foiir inches. The plaintiff and Roberts put the window in the frame. There was no scaffold and they were obliged to stand on the girder astride of the rail, and at best the place was a dangerous one in view of the work which they had to perform. .

They were directed by Youse, the foreman and acting superintendent of the defendant, to perform this work. The men looked the situation over and told the foreman it' was not possible to erect a staging for them to stand on while doing the work. Dugan, in testifying to what Youse said in reply to this information, gave this version : “He said we could stand on the track of the crane and put them in from that. I said yes, we could do that, if the crane would not run onto us. I said to Mr. Youse would it not be well to wait to some day this crane was not running. He said, 'It is running every day.’ I said, ‘It is running Sunday?’ He said, ‘Yes; are yon men afraid to go up there?’ We said, no we weren’t frightened by the height, but we were afraid the crane would run onto us. He said, ‘ I will take care the crane don’t run onto you,’ and we went on to work at the windows.”

While they were putting the windows in place on the west side the crane came within about fifteen feet of them, and evidently caused them some alarm. On Monday morning they commenced work on the southerly end of the east side of the building. Before doing so, the three carpenters again spoke to Youse, the superintendent, in regard to the peril they were in from the crane, informing him that it had approached within" fifteen feet of them when they were at work on the west side of the building. The plaintiff, in narrating this conversation, and the other two carpenters gave substantially the same version, testified:'“Mr. Roberts said that he didn’t like that place up there. Youse asked Roberts if he was afraid of falling, and'Roberts says, ‘ Ho, sir; I am not afraid of falling, but I aui afraid of the crane.’ Youse says, ‘ You needn’t be afraid of that crane; we will see that the crane does not hurt you.’ ”

On Tuesday morning, as they were going to work, plaintiff told Rose, who had charge of the running of the crane, to remember they were to work on the girder. Roberts and the plaintiff had been at work over an hour, and the crane had not approached them. They were lifting a window into place, one on each side of it, and they were required to raise it breast-high in order to place the lower end in the frame.. There were heavy angle iron braces extending diagonally from the girder to the side of the building, and also a perpendicular brace, and these had to be avoided in order to get the window in place. The attention of the men was devoted closely to this business, when the crane came along. Roberts observed it, letting go his hold of the sash, and warned the plaintiff of the approach of the car. The plaintiff, incumbered by the sash, endeavored to extricate himself, but was unable to do so and ivas crushed between the crane, the sash and angle iron braces, and very seriously injured.

. There were automatic riveters driving bolts in a smokestack which was in process of erection in the building and other noises incident to the construction of so large a building, and the plaintiff consequently failed -to hear the approach of the car, diverted as his attention was by the particular work in Which he was engaged.

At the close of the evidence the complaint was dismissed as to the defendant Wickwire Steel Company, and the verdict was rendered against the appealing defendant alone.

The action was submitted in pursuance of the Employers’ Liability Act, and the defendant contends that the notice which the plaintiff served upon the defendant was inadequate. It states the time with certainty. It gives the place as the millhouse and building of the Wickwire Steel Company, adding the location of that company. It gives the cause as follows: “ That the cause of said personal injuries was, that at the said time and at the said place a certain truck, car, vehicle and crane was projected, moved, propelled and run upon, into, over and against me, my person and body, with such force and violence as to crush, tear, lacerate, bruise, break and contuse my person, limbs and body, and jamb, push, press and squeeze my person, limbs and body against the braces, irons, supports, hangings and fittings of the. said truck, car, vehicle and crane and of the track and way on and about which the same was being operated, and likewise against the said mill, house and building and against the said track and way.” The notice continues: “ And I further claim that all of the matters aforesaid occurred through the sole negligence of you, the said Wickwire Steel Company, and of you, the said B. I. Crooker Company, and without any contributory negligence whatever on-my part.”

The notice is indefinite in its designation of the place, although this omission is somewhat cured by the reference to the crane in the description of the cause of the accident. Stripped of its verbiage in giving the. cause, it may be fairly said to state that the crane with its appliances was projected upon the employee with such force that he was squeezed in between the braces and the crane and he was thereby injured, and that the catastrophe was attributable to the negligence of the defendant, and without fault upon his part. There was no defect in the crane or in any of the appliances by which it was operated, nor in the girders or braces. The liability of the defendant was mainly , based upon the fact that the superintendent had assured the plaintiff that the. crane would not run upon the track when he was at work, and that, he relied upon this assurance.

The place where the work was to be performed was dangerous, inherently so. The defendant was not absolved from its obligation to the plaintiff, to make it as reasonably safe as the surroundings permitted. “ Reasonably safe ” is á flexible term. In this instance the work consisted in handling a heavy window fifty feet from the floor and entangled among braces, and the operator standing on a girder eighteen inches wide with an iron railing along its center. The intrinsic danger would be materially increased if the car or crane came along when the plaintiff was engaged in lifting the window into place four feet above the girder. It was against this particular, overwhelming peril that he was careful to he guarded by obtaining the assurance of the superintendent that he had arranged with the Wickwire Cdmpany not to propel its crane while the plaintiff was at work putting the windows in place. The notice does not set forth this promise of Yonse. It does state the physical cause and charges the defendant with responsibility for. it. I think it was not necessary either to set forth the authority of Youse or the promise referred to.

In Bertolami v. United Engineering & C. Co. (198 N. Y. 71) the plaintiff’s intestate was killed by a mass of- rock and dirt falling upon him while he was at work in the construction of the terminal tunnel of the Pennsylvania railroad in the city of Flew York, and the validity of the notice was considered by the Court of Appeals. It was claimed in the notice, in general terms, that the injuries of the intestate were caused by the failure of the defendant to furnish him with a safe place in which to work, and also in that it failed to keep that place safe while he was at work, and the court held this general description was sufficient. . It then continues the discussion as follows at page 75 : “ It is true that it does not specify the name, grade or duties of the particular person representing defendant and through whom it acted when guilty of the alleged ' omissions. It does not state that the person through whom defendant made default was an agent acting as or exercising duties of a superintendent in its behalf, but we do not think that it was necessary for the -notice to go to this extent. The defendant was notified of that which immediately fell upon and injured the intestate and was apprised of the claim that it was responsible for the accident because of its failure in substance to inspect, safeguard and keep safe the place wherein the intestate was ' working. This omission if. it existed was of necessity primarily that of • a representative who had superintendence over and control of the conditions which prevailed where the accident happened, and without going further than it did and identifying this representative and particularizing his grade and duties, the notice seems to us to comply with the view, adopted in the Firmigan case.” While the notice might well- have been more specific, I think it should not be held insufficient.

The case of Finnigan v. N. Y. Contracting Co. (194 N. Y. 244) is perhaps the most stringent of any case in passing upon the requirements of the notice prescribed in this act. In that case “ many independent grounds of negligence ” were set forth in the notice to the employer, and it could not possibly, from the notice itself, obtain any information which would be useful to it in making an .investigation of the cause of the accident. There was nothing in the notice to advise the employer that the real cause of the injury was in leaving a hidden undischarged cartridge of dynamite in proximity to the place where the plaintiff’s intestate was at work, and the unexpected explosion of this dynamite caused his death. The framer of the notice grouped a variety of causes, which, while not intended to deceive as the record shows, could have no other-effect than to leave the employer wholly in the dark as to the manner in which the injuries were inflicted; and in that respect the notice differs radically from the one in controversy.

The notice is sufficiently explicit within the moré recent authorities, which, while not in any way repudiating the doctrine of the Finnigan ease referred to, do to some extent limit its application. (Martin v. Walker & Williams Mfg. Co., 198 N. Y. 324, 329; Bertolami v. United Engineering & C. Co., Id. 71, supra ; Hurley v. Olcott, Id. 132; Valentino v. Garvin Machine Co., 139 App. Div. 139.)

The notice in Logerto v. Central Building Co. (198 N. Y. 390) comes within the explicit condemnation of the Finnigan case in that it states independent causes of the accident, and the employer, from the facts contained in the notice, would not be able to make any examination for the purpose of ascertaining whether the accident really occurred, or, if so, if it was responsible for it.

The object of the notice is to advise the employer as to the time, place and cause of the accident in order that he maybe able to investigate and ascertain the truth of the claim of liability charged against him by the person injured, (Logerto v. Central Building Co., 198 N. Y. 390, 393; Heffron v. Lackawanna Steel Co., 121 App. Div. 35, 41.)

The service of the notice is a condition precedent to the maintenance of the action pursuant to the Employers’ Liability Act, and yet it was not expected that the notice must be precise in form. If its purpose to inform the employer of the time, place and cause of the accident can fairly be spelled out of the notice the provision of the statute is complied with. The saving clause in the statute (§ 2; revised in § 201) that the notice shall not be deemed to be “ insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury ” if it appears that there has been “ no intention to mislead, and that the party entitled to notice was not in fact misled thereby,” was embodied in the statute advisedly.

In the present case the accident occurred in daylight in a conspicuous place in the presence of several of the defendant’s employees. Mr. Hagerty, the general foreman and superintendent of the defendant, came promptly to the rescue of the plaintiff and extricated him from the perilous position he was in. The cause and manner of the accident were patent and obvious, and the defendant was not misled by any inaccurate or confusing statement of facts which may have been in the notice, or by reason of the failure to state the cause with greater amplitude. There could have been no' intention to deceive. In fact, there is no dispute over the manner in which the plaintiff received his injuries.

In view of the beneficial purpose of this law and with, the saving clause adverted .to, the notice should be construed to some extent in the light of the existing facts in each case. If the accident occurred in an obscure part of the building, or if no one observed it, or. if there were any other facts requiring a definite, explicit and detailed statement- of the cause of the accident in order to enlighten the employer, the notice should state pointedly the facts constituting the real cause of the injuries. If, however, the cause of the accident is- obvious and the employer knows precisely how, and when, and where.it occurred, a notice of less particularity and precision may be deemed to be adequate. (Heffron v. Lackawanna Steel Co., 121 App. Div. 35 ; affd., 194 N. Y. 598.) As already noted, Youse, the foreman and superintendent* as the jury have found, actually in charge of the carpenters employed on the work by the appellant, assured the plaintiff and the other carpenters that the crane would not run while they were at work. The plaintiff relied upon this explicit assurance of his superintendent, and he was justified in so • doing. (Lobasco v. Moxie Nerve Food Co., 127 App. Div. 677; Siedentop v. Buse, 21 id. 592.)

Assuming that Youse, as lie testified, told Bose, the operator of the crane, to look out for the men at work, the defendant is not thereby exonerated from liability. The plaintiff relied upon Youse to keep the crane from running and the promise of the latter to do so indicated he had Control over it. One of the essentials, in making- the place where the plaintiff was at work reasonably safe was to prevent the crane from operating on the track. Youse represented the master in assuming to do this. Whether he performed his full measure of duty to the plaintiff in carrying out the promise he made was for the jury to determine. -

Again it is urged that because the plaintiff' told Bose to remember-that he and Boberts were at work on the girder, denotes that he placed no reliance upon the assurance of Youse. The plaintiff in warning Bose was exercising the caution of a careful man going to work in a place of danger. He might still have relied upon the promise of Youse. . In any event, the jury have so found, and the evidence sustains .the finding.

' - Plaintiff assumed the risk, dangerous as it was, óf falling from the girder or of the perils incident to the performance of the work in tlie condition the girder and surroundings were while he was putting in the windows. He did not assume the risk of being injured by the moving crane for he was assured by the alter ego of the defendant that he would not be subjected to that additional jeopardy.

The defendant urges that the court erred in receiving evidence of injury to the plaintiffs nerves, on the ground that no such injuries were alleged and that they were not the natural or necessary result of the injuries claimed. The allegations of the complaint in setting forth the injuries are quite general, as follows: “ His person and body squeezed, crushed, bruised and lacerated, and his limbs and body torn, injured, disfigured and crippled, causing the plaintiff great pain and suffering and disabling him so that he was during all the times thereafter and still is unable to pursue his usual business and avocation as a carpenter and joiner.” And further, that the injuries sustained are permanent.

Among the many injuries which the plaintiff sustained in the collision was a puncture about two inches deep on the left side of the rectum at the lower end of the Spinal column, which was also broken off. This puncture or wound injured the sphincter muscle which controls the rectum. One of the physicians testified that there was much scarred tissue on the left side of the rectum and that “ the sphincter muscle could not functionate with that condition,” and the muscles became atrophied by reason of this injury to the nerves. It is reasonable to conclude, therefore, that the injuries to the plaintiff’s nerves were the immediate, natural and necessary result of this puncture and of the bruises and laceration of the body of the plaintiff. Within the general averments of the complaint it was competent to show injuries to the nerves which were the natural "and reasonable result of the injuries sustained by the plaintiff. (Rudomim, v. Interurban St. R. Co., 111 App. Div. 548; Eichholz v. Niagara Falls H. P. & M. Co., 68 id. 441; affd., 174 N. Y. 519 ; Roenbeck v. Brooklyn Heights R. R. Co., 123 App. Div. 604; Ehrgott v. Mayor, etc., 96 N. Y. 264; Myers v. Erie R. R. Co., 44 App. Div. 11, 15.)

The verdict was not excessive. The plaintiff’s left foot was crushed, the left leg fractured in two places, the knee injured, the left hip crushed and bruised, the ribs crushed in and the sphincter muscles lacerated, and these are among the serious injuries which the plaintiff sustained. The trial was twenty months after the accident, and the plaintiff, who was then of the age of thirty-nine years, was obliged to use a crutclq and the physicians testified that his injuries would be permanent and that he woqld not again be able to work at his trade.

The other questions urged do not call for a reversal of the judgment. •

The judgment should be affirmed, with costs.

, All concurred.

*Judgment and order affirmed, with costs..