
    Charles E. Larson, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    November 24, 1909.
    Master and servant —negligence—Employers’ Liability Act — when one is a superintendent — pleading — admissions — estoppel.
    In order to hold a master liable under the Employers’ Liability Act for the negligence of a foreman it must be shown not only that the negligence was that of a person exercising superintendence but that he was engaged in an act of superintendence at the time.
    
      The superintendence intended by the statute involves more than the mere authority to give directions to a helper in respect to some detail of the work.
    Where plaintiff, a laborer engaged in removing old ties from an elevated railroad and replacing them with new ones, was ordered to go down into the street and carry away the old ties as they were thrown down and the foreman himself went into the street to warn the public and to signal the man above when to drop the ties and plaintiff was hit by a tie dropped in response to the foreman’s signal, he cannot recover under the Employers’ Liability Act for the injuries so received, for at the time the foreman was engaged in a mere detail of the work and not in an act of superintendence.
    While a foreman is performing a part of the work which he might have assigned to any common laborer, he • is not discharging the duties of a superintendent.
    Admissions of- the service of a proper notice under the Employers’ Liability Act contained in the answer do not estop the defendant from raising the question of the sufficiency of the evidence to establish any cause of action whatever.
    Miller, J., dissented.
    Appeal by the plaintiff, Charles E. Larson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of May, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.
    
      Frederick S. Marlyn, for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff brings this action, invoking the aid of the Employers’ Liability Act, to recover damages for personal injuries. The complaint was dismissed at the close of plaintiff’s evidence upon the ground that it was one not within the scope of the Employers’ Liability Act, and on the further ground that it failed to establish an action at common law. The plaintiff appeals from the judgment, and urges that the defendant is estopped by its answer from raising the question of liability under the Employers’ Liability Act; that the plaintiff was entitled to go to the jury on the question of the negligence of the person exercising supervision over the work; that the notice served by the plaintiff was sufficient, and that he was entitled to go to the jury on his common-law right of action.

On the 24tli day of December, 1906, the plaintiff was injured by having his foot crushed by a tie which was thrown or dropped upon him from the elevated structure maintained by the defendant on Hudson avenue, between Myrtle avenue and Fulton street, Brooklyn. For a few days prior to that date the plaintiff with several others constituting a gang of track laborers under the foreman-ship of one Johnson had been engaged in taking out old ties and replacing them with new ones. The old ties had been piled up at a point on the structure within Hudson avenue, and on the day in question the foreman directed the plaintiff with a fellow-workman to go down into the street underneath the structure for the purpose of carrying away the old ties which were to be thrown down to them. At the same time he directed some of the other members of the gang to carry the ties from the point where they had been piled to an opening at the side of the track, on the right-hand side of the structure, and not to throw any ties down until he gave the word. Another man by the name of Lucas was stationed in the street, underneath the structure, for the purpose of giving warning to the public, and Johnson himself took a position on the street at the opposite side of the opening, where he could warn the public approaching from that side. With the forces thus distributed the work commenced, and had proceeded for about half an hour, the plaintiff and Ecklund gathering up the ties and carrying them away as they were thrown down to them. Something like twenty ties had been thrown down, each in response to the word from Johnson, when the plaintiff, while in the act of stooping to pick up one of the ties, was struck by a tie which was dropped by the men above in response to the call of Johnson to let her go.” The theory of the plaintiff is that Johnson, the foreman of this gang, was the superintendent of the defendant, and that the latter is liable for his carelessness in directing that this particular tie be dropped at this particular moment, while the plaintiff was underneath the opening through which the ties were being dropped, and while much of the argument of counsel is addressed to the question of the sufficiency of the notice given by the plaintiff in an effort to bring the case under the provisions of the Employers’ Liability Act, we are of the opinion that the question here presented is one relating to the character in which Johnson was acting at the time of the accident rather than the sufficiency of the notice.

The law is well established that in order to hold the employer liable it must be shown not only that the negligence was that of one exercising superintendence, but that he was engaged in an act of superintendence at the time. (Droge v. Robins Co., 123 App. Div. 537, 540, and authorities there cited.) The plaintiff's own evidence shows that Johnson, whatever might have been his general relation to the plaintiff, was at the time engaged in a mere detail of the work of getting the ties down from the elevated structure. For instance, if Lucas had been assigned to the duty of giving the word to drop the ties, no one would have suggested that he was exercising the duties of a superintendent; he would have been simply engaged in performing one of the details of getting these ties from a place on the elevated structure to the street and out of the way in a safe manner, and Johnson was doing no more than this. He placed the men in proper positions to insure the safety of the public who were lawfully in the street, and he took upon himself the part of watching one side of the approach and giving the word to drop the ties when the way was clear, presumably after a signal from Lucas, who was on the other side. It was a part that might have been performed by any workman of ordinary intelligence, and to say that Johnson was engaged in an act of superintendence in giving the word to let these ties fall, would be as absurd as to declare that every signalman was a superintendent. Standing guard and giving directions when to proceed with the work were not acts of' superintendence ; the superintendence intended by the statute involves more than the mere authority to give directions to a helper in respect to some detail of the work. (Falk v. Havemeyer, 123 App. Div. 657, 659, and authorities there cited; Quinlan v. Lackawanna Steel Co., 191 N. Y. 329.) As Cullen, Ch. J., said in Guilmartin v. Solvay Process Co. (189 N. Y. 490, 495) “ the question in any case brought under the statute [the Employers’ Liability Act] is not whether the negligent act is a detail of the work, but whether it is a detail of the superintendent’s part of the work, or of that of the subordinate employees and servants,” and, tried by this test, there would seem to be no question that the plaintiff had tailed to establish a cause of action under the statute.

For instance, if Johnson had placed the men, one in his own position as he attempted to fill it, and had then gone away, and the man who filled his position committed the same act of negligence which Johnson committed, there would have been no liability on the part of the defendant, for such person was no more performing the duty of a superintendent than was the man who carried the tie and dropped it at the signal given. It was employment of the simplest possible character, as it related to the employees, and was such that it required no superintendence in the common understanding of that term; it merely required care in preserving the public against special dangers, and the master might properly place the men in such a position as to insure the safety of the public, and any man thus placed and giving the necessary signals, could not be held to be a superintendent orto be discharging the duties of superintendence. Johnson, the foreman, merely took hold and performed a part of "the work which he might have assigned to any common laborer, and in doing this he was certainly not in the act of discharging the duties of a superintendent.

If we are right in this, the question of the sufficiency of the notice served is not important; a perfect notice could not add to a cause of action which had no foundation either at common law or under the statute. Neither could the admissions in the answer, if they are admissions, of the service of a proper notice, estop the defendant from raising the question of the sufficiency of the evidence to establish any cause of action whatever. That question is always open upon the trial.

The judgment appealed from should be affirmed, with costs.

Jenks, Burr and Rich, JJ., concurred; Miller, J., dissented on the authority of McHugh v. Manhattan R. Co. (179 N. Y. 378); Quilmartin v. Solvay Process Co. (189 id. 490).

Judgment affirmed, with costs.  