#### Louis Young, Respondent, *v.*William Bradley *&*Son, Appellant.

Second Department,

December 30, 1908.

Blaster and servant—Employers’ Liability Act —sufficiency of notice —supplementing defects by proof.

A mere general statement of negligence in a notice under the Employers’ Liability Act is not an “inaccuracy” within the meaning of the statute which may be obviated if it be shown that there was no intention to mislead and that the party entitled to notice was in fact not misled.

But a notice which states that on a specific day, while in the defendant’s employ at a specific factory, the plaintiff was injured by reason of the defendant’s “ failure to furnish * * * a safe and proper place in which to do the work which I was engaged to do by you, in that there was no proper platform or scaffold furnished from which to do the work; and in failing to furnish proper, *679. safe and suitable appliances with which to work; in failing to exercise reasonable diligence, care and prudence in the premises; and in failing to furnish competent fellow-servants,” while not fulfilling the requirements of the statute, is yet sufficiently specific to be supplemented by proof that the master was not misled.

*It seems,*that where a cause has been submitted to the jury under the Employers’ Liability Act, a judgment for the plaintiff must be reversed if the notice was insufficient, irrespective of whether the evidence established negligence of the master for a failure to furnish a safe place to work, because a negligent omission in a detail of superintendence is not necessarily a negligent omission of the common-law duty of the master to furnish a safe place to work.

Rich and Woodward, JJ., concurred in result, with opinion.

Appeal by the defendant, William Bradley & Son, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 3d day of March, .1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 7th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*John C. Robinson [Frank V. Johnson*with him on the brief], for the appellant.

*Gregg, O'Leary, Frank & De Witt,*for the respondent.

Miller, J.:

The defendant was engaged in the construction of, and the installation of machinery in, five connected stone buildings or sheds. The accident happened in a span forty feet wide and four hundred and fifty feet long, along either side of which, twenty-five feet from the floor, was a beam, eight to ten inches wide, supporting a track -upon which a traveling crane was run. The plaintiff was directed by his foreman, who had the superintendence of the carpenters, to put in some window frames. He wanted to construct a scaffold upon which to stand, but was told by said foreman to stand upon said beam. While he was thus engaged at the work, another workman, engaged in some other work, started the crane and caused it to run over the plaintiff’s foot, inflicting the injury for which he has recovered in this action. The defendant’s superintendent, Stone, testified: They (meaning the carpenters) had used the runway. We had a rule there that the runway was not to be used except by my permission unless it was work that they did *680not consider dangerous; we considered we could hang windows without going on the rail. If we were doing work that necessitated standing on the runway they got permission from me and I had the current shut off.” It thus plainly appears to have been assumed by those in charge of the work that a man, doing the plaintiff’s work, could stand upon a ten-inch beam without being in any danger of being injured by the crane, moving along and upon it, and hence no precaution was taken by the foreman, when he directed the plaintiff to stand upon the beam, to see that the electricity was turned off, and none was taken by the superintendent to see that the carpenters, standing upon these beams, were protected, although he knew that the beam was used as a scaffold by the carpenters in putting in the window frames; and although he and the foreman must have known that the crane was liable to be moved at any time if the electricity was not turned off, for it appears that any of the workmen could use the crane. Hence, I think the evidence justified the submission of the case to the jury as one to recover for a negligent act of superintendence within the meaning of the Employers’ Liability Act,* and the case was submitted to the jury on that theory. This was excepted to and the judgment is challenged for the insufficiency of the notice.

If the exception was well taken, the judgment must be reversed, irrespective of whether there was evidence tending to establish the negligence of the master for failure to furnish a safe place, because it does not necessarily follow that, if there was a negligent omission of duty on the part of the superintendent, there was a negligent omission of the common-law duty of the master to furnish a safe place.

The notice is as follows :

> ' “ Long Island City, H. Y., *January 24dh,*1907.

> “ Wm. Bradley & Son,

> “ 277 Broadway,

> “Hew York :

> “Gentlemen.—Please take notice, that I have a claim against you for personal injuries sustained by me on the 3rd day of January, 1907, while in your employ at your factory on Vernon avenue, *681Long Island City, by reason of your failure to furnish me with a safe and proper place in which to do the work which I was engaged to do by you, in that there was no proper platform or scaffold furnished from which to do the work; and in failing to furnish proper, safe and suitable appliances with which to work ; in failing to exercise reasonable diligence, care and prudence in the premises; and in failing to furnish competent fellow-servants.

> “ Respectfully yours,

> “LOUIS YOUNG.

> *“*By Gregg, O’Leary, Frank *&*De Witt,

> *“Attorneys,*

> “62-68 Jackson Avenue, Long Island City, N. Y.”

Eliminating the general statements of negligence *(Palmieri*v. *Pearson & Son, Inc.,*128 App. Div. 231, and cases cited), we find that it is stated that the plaintiff’s injuries were due to the master’s failure to furnish a *“*proper platform or scaffold.” While that was not an accurate statement of the specific cause of the injury, it was an attempt to state a specific cause. The injury was in fact caused by the crane running over the plaintiff’s foot. The one who prepared the notice evidently had in mind that the beam was not safe for use as a scaffold in view of the danger from the traveling crane which might be used at any time unless some precaution was taken to guard against it, and so stated that the injury was caused by the improper platform or scaffold. It must be granted that the notice did not comply with the statute, and the question is presented whether the defect was an *inaccuracy*which could be obviated by proof that there was no intention to mislead, and that the defendant was not in fact misled. The statute (§ 2) provides, “but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it be shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.” While a general statement of negligence is not a mere inaccuracy which may be obviated by the proof specified in the statute *(Palmieri*v. *Pearson & Son, Inc.,*128 App. Div. 231; *Finnigan*v. N. *Y. Contracting Co.,*122 id. 712), the statement in this case, though quite general, is sufficiently specific, it seems to me, to *682be eked out by such proof. The defendant’s superintendent testified that, immediately after the accident, he made an investigation and reported to the defendant the circumstances of the accident. To be sure, he does not state what he learned or what lie reported, but it would be taxing credulity too much to assume that he did not learn what happened. There can be no doubt that the defendant had all of the information that a definite and specific statement could have given it, and, while the plaintiff is not entitled to recover under the Employers’ Liability -Act except he give the notice required by the act, it seems to me that it would be altogether too technical to hold, in view of the language of the statute, that the defects in the notice in this case could not be obviated by the undisputed proof that the defendant was not misled.

Jenks and Hooker, JJ., concurred.

*

Laws of 1903, chap. 600.— [Rep.

Rich, J. (concurring):

The complaint alleges facts, separately stated and numbered, constituting a cause of action for a personal injury, *first,*under the common law, and, *second,*under the Employers’ Liability Act. This is permissible. *(Mulligan*v. *Erie R. R. Co.,*99 App. Div. 499; *Kleps*v. *Bristol Mfg. Co.,*107 id. 488; *Acardo*v. *N. Y. Contracting & Trucking Co.,*116 id. 793.) The notice served, however, was insufficient, it not stating the cause of the injury. *(Miller*v. *Solvay Process Co.,*109 App. Div. 135; *Barry*v. *Derby Desk Co.,*121 id. 810; F*innigan*v. *N. Y. Contracting Co.,*122 id. 712; *Glynn*v. *N. Y. C. & H. R. R. R. Co.,*125 id. 186; *Kennedy*v. *N. Y. Telephone Co.,*Id. 846; *Bovi*v. *Hess,*123 id. 389.) The learned justice presiding at the trial submitted to the jury the question of whether there was any intent to mislead the defendant in the notice served, and also whether the defendant was in fact misled, charging them that if they found “ that there was no intent to mislead,” and “that the defendant was not misled,” the notice was sufficient. To bring the case at bar within the rule established in *Hughes*v. *Russell*(104 App. Div. 144), that the insufficiency of such a notice might be obviated by proof, under the statute, that there was no intention to mislead, and that the party entitled to notice was not in fact misled, such proof must be found in the record, and in its absence the trial court was not justified in submitting the questions to the jury. *683The only evidence of that character in the case at bar was given by the witness Stone, defendant’s general superintendent, that there was a rule of the company requiring an investigation and report of every accident, and that immediately after the accident he did make an investigation and report. He did not see the accident, and it does not appear that he knew how it occurred, or that he had any knowledge of the true cause of the injury except through a presumption flowing from the fact that he made an investigation.

I do not think the notice in the case at bar presents merely an inaccuracy which can be overcome by proof of no intention to mislead, and that the defendant was not misled *(Hughes*v. *Russell, supra),*but rather that the case presented is within the principle decided in *Finnigan*v. *N. Y. Contracting Co. (supra)*and *Glynn*v. *N. Y. C. & H. R. R. R. Co. (supra).*There can be no question but that there must be some evidence that the defendant had actual knowledge of the true cause of the injury, and that there was no intention on the part of tlie plaintiff, in the wording of his notice, to mislead. There is no such evidence in the record before us. This error does not, however, require a reversal, as the plaintiff made out a cause of action under the 1st subdivision of his complaint, upon defendant’s common-law liability. This cause of action did not rest upon the negligence of plaintiff’s fellow-servant Stewart, who started the crane, but is predicated upon the proposition that the defendant was negligent because of its failure to discharge its legal duty and obligation to use due care in providing him with a safe place in which to do his work, and in failing to provide reasonable safeguards. The jury were charged that they could not find a verdict for the plaintiff based simply upon the fact that Stewart was careless in moving the crane, but that before such a verdict was warranted they must find from the evidence that the place furnished by the defendant to tlie plaintiff to do his work was unsafe in fact, and that the negligence of the defendant made it so.

The jury have resolved the questions in.favor of thp plaintiff, and the judgment and order must be affirmed, with costs.

Woodwaed, J., concurred.

Judgment and order unanimously affirmed, with costs.